During Supreme Court nomination fights — like the current battle over President Donald Trump’s new Supreme Court pick, Brett Kavanaugh — we hear a lot about how judges should interpret the Constitution. Conservatives argue that the Constitution’s words have an original meaning, frozen in time. Progressives argue that the Constitution’s meaning should evolve with the changing times.
But no argument is possible about how judges actually have interpreted the Constitution. The evolutionary approach has prevailed, throughout our history — especially as to constitutional rights. Our evolved Constitution now contains essential protections for our autonomy and dignity, like the right to make decisions about your own body and to marry whom you choose.
Judges have found those personal liberty rights in the Constitution for one reason: because we, the people, have decided the Constitution should protect those rights. Now, as the Senate considers Judge Kavanaugh’s nomination, we must make sure that the Supreme Court will continue to protect the people’s rights.
The Supreme Court has tremendous power, but it isn’t some remote super-government. It isn’t The Great and Powerful Oz, deciding at its whim what constitutional rights exist. Rather, constitutional rights develop through an ongoing, back-and-forth conversation between the court and the people.
Sometimes the court has recognized constitutional rights, only to change its tune when the people tell the court it was wrong. In the mid-19th century, the court decided that slaveholders had a constitutional right to own people as property. That decision helped to spark the Civil War. Eventually the court admitted its awful mistake. In the early 20th century, the court decided that businesses had a constitutional right not to be regulated for the public good. That decision helped to cause the Great Depression. Once again, the court reversed course.
Other constitutional rights have stood the test of time.
In 1973, the Supreme Court held in Roe v. Wade that states may not ban abortion. We all know that abortion remains a wrenching political issue. We still fight sharp political battles about how states may regulate abortion. But through all the political turmoil, a strong majority of Americans has held firm to the view that Roe v. Wade is right: No state should have the power to make abortion illegal. Because of that public consensus, the court has reaffirmed Roe.
More recently, the court held that same-sex couples have the same right to marry as do opposite-sex couples. That right may seem less firm, because it hasn’t existed as long. However, a strong public consensus caused the court to decide as it did. Just 25 years ago, few people thought about a right to same-sex marriage. By the time the issue reached the Supreme Court, a wave had swept through public opinion. Today a large, ever-growing majority supports same-sex couples’ right to marry.
Just as the Supreme Court took the people’s cue to reject the old constitutional rights to own slaves and to avoid business regulations, the court took the people’s cue to recognize the rights to abortion and same-sex marriage. We demanded freedom from government limits on our lives and our bodies. The court honored our will.
That’s how our American system works.
Conservatives, though, want the Supreme Court to stop listening to the people. They want the government to control our bodies and our intimate lives. With Trump in power, conservatives see a golden opportunity to lock up women who seek abortions and to persecute same-sex couples.
Conservative judges, like Trump’s first Supreme Court pick Neil Gorsuch, try to pretend they’ll protect our rights. They tell us that they “respect precedent” — that they won’t overrule past court decisions. But no judge respects all precedent. We know the law changes over time. Gorsuch has already provided the decisive vote to strike down precedents that conservatives don’t like.
When Brett Kavanaugh stands before the Senate, we shouldn’t let him tell us he’ll “respect precedent” and then change the subject. Our rights are too important for that empty, tired promise. Instead, senators should ask Judge Kavanaugh two simple questions:
• Will you, as a Supreme Court justice, honor the American people’s will, and the Supreme Court’s decision, that our Constitution protects a woman’s right to get an abortion?
• Will you, as a Supreme Court justice, honor the American people’s will, and the Supreme Court’s decision, that our Constitution protects the rights of both opposite-sex couples and same-sex couples to marry?
Any answers other than “yes” to both of those questions should disqualify Judge Kavanaugh, or anyone, from serving on the Supreme Court.
Of course abortion and marriage aren’t the only legal issues that matter. Senators must ask Judge Kavanaugh tough questions about our First Amendment right to protest, about the government’s ability to protect our kids from deadly weapons, about making sure that no one — not even the president — is above the law.
But our personal liberty must be the starting point. If Judge Kavanaugh won’t commit to blocking the government from controlling our bodies and our intimate lives, that should be the end of his nomination.
Gregory P. Magarian is a professor of law at Washington University.