Kavanaugh: The analogy to sporting umpiring is very strong.
Sasse: Yes, but everything that can happen in football is predictable. In cases that may originate before you are not as cabinable. Not every Supreme Court decision is right and part of the permanent rulebook.
Kavanaugh naming the various factors that go into overruling precedent, including reliability. One of the genius moves Thurgood Marshall made, Kavanaugh says, was to build a body of law to undermine Plessy by showing that separate was not really equal.
Sasse: Everybody should watch the Marshall documentary.
Kavanaugh: Marshall had a strategic vision of how to do this.
Sasse: One reason you think this is because of Harlan's dissent. What's the purpose of a dissent?
Kavanaugh: For an issue that sufficiently important, perhaps Congress will think your interpretation of a statute is better and will change the statute. In constitutional law, dissents often speak to the next generation. Harlan's dissent was a classic.
Sasse: Why do you write a concurrence?
Kavanaugh: Sometimes because you have a different rationale for the same result.
Sasse: So who's your audience?
Kavanaugh: Sometimes to suggest things to lower courts. Sometimes to a future Supreme Court.
Sasse: So, you're on the court losing in a 6-3 case, and you write a dissent. Next year there's a similar case, so you don't vote for cert, but the others do. Are you supposed to now have the view of the majority, or do you write the same dissent again?
Kavanaugh: As a matter of precedent, you follow precedent. There have been times justices have persisted in their dissents. Sometimes they join the majority but write separately to indicate that they still agree with the dissent. It's not a one-size fits all. Justices Marshall and Brennan dissented in every death penalty case because they did not believe the death penalty was constitutional.
Kavanaugh: I think a good judge accepts a precedent subject to rules of stare decisis.
Sasse: What's the different between appellate court judge's job and Supreme Court justice's job with regard to precedent?
Kavanaugh: On the DC Circuit, we follow vertical stare decisis, so we cannot deviate from Supreme Court precedent. We can reassess circuit precedent when sitting en banc.
Sasse: Is there a single Supreme Court justice who agrees with every decision?
Kavanaugh: That has to be zero.
Sasse: So, how does that get netted out?
Kavanaugh: Ordinarily, by the court following precedent.
Sasse: Could an appellate judge have gone with Harlan in 1940 [ie, before Brown]?
Sasse: What is the Declaration of Independence?
Kavanaugh: It declares independence from Great Britain and sets forth a list of grievances against the monarchy, many of which you see addressed in the later Constitution. It's a set of principles that guide our beliefs. Life, liberty, and the pursuit of happiness, all people are created equal.
Sen. Coons, D-Del., now up.
Coons: No one is above the law.
Coons is going into history of Watergate, Nixon, and special counsel Archibald Cox. Nixon fired the special prosecutor.
Coons: When Nixon fired Cox, did he violate the law or the Constitution?
Kavanaugh: It violated the regulation.
Coons: Would it have violated the Constitution?
Kavanaugh: In US v. Nixon, the Supreme Court analyzed the regulation and relied on it in finding the case was justiciable.
Coons: When Nixon fired Cox, does the Constitution prohibit this?
Kavanaugh: My views are what the precedent says.
Coons: Are you aware of any justice have questioned the decision since?
Kavanaugh: I've called it one of the four greatest moments.
Coons: Was Nixon wrongly decided?
Kavanaugh: I've called it one of the four greatest moments.
Coons: You would agree that it was correctly decided?
Behind Coons is a sign quoting Kavanaugh saying "maybe Nixon was wrongly decided."
Kavanaugh: I'm not going to answer hypotheticals about applying Nixon.
Kavanaugh: Holding was that subpoena for information in context of criminal trial could be enforced -- the case was justiciable.
Kavanaugh: The context of the sign is incorrect.
Coons: The striking thing about the context is that at the roundtable, the person who was part of US v. Nixon thought the statement was you staking out your jurisprudential approach.
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