On Thursday, The Wall Street Journal’s Paul Gigot and federal Judge Brett Kavanaugh discussed the role of judges and the Supreme Court in supporting the rule of law and preserving the separation of powers in the American system of government. Judge Kavanaugh maintained that the Court has a role to play in protecting Congress and the separation of powers: while it is Congress’ task to pass statutes and set boundaries for an agency’s action, the Court should police such boundaries when the agency seeks to work outside of them. This requires a careful balance to ensure that the Court does not interfere unduly with the proper operation of Congress or the executive branch.
The panelists commented that while Madison famously called the Court the “weakest branch,” today it often plays an outsized role in the political process. Activist judges who do not hold to the text of statutes or the Constitution can contribute to this phenomenon, but it also occurs when the other branches punt difficult political policy decisions to the Court for resolution.
— Rebecca Burgess
Judges must navigate between interpreting the Constitution and statutes, working within existing precedents and applying both bodies of law to particular cases. Striking this balance has policy consequences that render the Supreme Court a political branch in the public’s mind. As the heated debate over Justice Antonin Scalia’s replacement demonstrates, the Court is no longer seen as the “least dangerous branch.”
How should justices address this tension in their decisions and opinions? Can the Court return to a narrower vision of its judicial duty? If not, what judicial philosophy best fits the reality of the Court’s role in a self-governing republic?
Join AEI for a timely discussion between Judge Brett Kavanaugh and The Wall Street Journal’s Paul Gigot, followed by an expert panel on the Court’s challenges in carrying out its duty to “say what the law is.”
Join the conversation on social media with @AEI and #Courts2016
Panel I: Self-governing republics and the role of the Court
Paul Gigot, The Wall Street Journal
Brett Kavanaugh, US Court of Appeals for the DC Circuit
Gary J. Schmitt, AEI
Panel II: How political? The Court and the democratic process
John C. Eastman, Chapman University; Claremont Institute
Jeremy A. Rabkin, George Mason University School of Law
Nicholas Quinn Rosenkranz, Georgetown Law
Kevin C. Walsh, University of Richmond School of Law
Adam J. White, Hoover Institution
Event Contact Information
For more information, please contact Rebecca Burgess at [email protected], 202.419.5208.
Media Contact Information
For media inquiries or to register a camera crew, please contact [email protected], 202.862.5829.
John C. Eastman is the Henry Salvatori Professor of Law and Community Service and former dean at Chapman University Fowler School of Law. He is the founding director of the Center for Constitutional Jurisprudence, a public interest law firm affiliated with the Claremont Institute. Before joining the Fowler School of Law faculty in August 1999, he served as a law clerk with Justice Clarence Thomas at the US Supreme Court and with Judge J. Michael Luttig at the US Court of Appeals for the Fourth Circuit. After his clerkships, Dr. Eastman practiced with the national law firm of Kirkland & Ellis. He was selected for membership in the Order of the Coif and was a member of the Law Review, a Bradley Fellow for Research in Constitutional History, and an Olin Fellow in Law and Economics. Before law school, he served as the director of congressional and public affairs at the United States Commission on Civil Rights during the Reagan administration and was the 1990 Republican nominee for Congress in California’s 34th District.
Paul Gigot has served as the editorial page editor and vice president of The Wall Street Journal since 2001. He is responsible for the newspaper’s editorials, op-ed articles, and Leisure & Arts criticism. He directs the editorial pages of the newspaper’s Asian and European editions and the OpinionJournal.com website. Mr. Gigot is also the host of “Journal Editorial Report,” a weekly half-hour news program on Fox News Channel. Before becoming an editor at The Wall Street Journal, Mr. Gigot wrote the weekly column, “Potomac Watch,” for which he won a Pulitzer Prize in 2000. He served as a White House fellow under President Ronald Reagan.
Brett Kavanaugh is a federal judge who sits on the Unites States Court of Appeals for the DC Circuit. In addition, Mr. Kavanaugh teaches courses in separation of powers at Harvard Law School, in national security and foreign relations law at Yale Law School, and in constitutional interpretation at Georgetown University Law Center. He has served as associate counsel, senior associate counsel, assistant to the president, and staff secretary to President George W. Bush. He has been an associate counsel in the office of independent counsel Kenneth W. Starr and a partner at Kirkland & Ellis in Washington, DC. During the October term of 1993, Mr. Kavanaugh served as a law clerk to Judge Anthony Kennedy of the US Supreme Court. Before that, he worked as an attorney in the Office of the Solicitor General of the United States, as a law clerk to Walter Stapleton of the US Court of Appeals for the Third Circuit, and for Alex Kozinski of the US Court of Appeals for the Ninth Circuit.
Jeremy A. Rabkin is an adjunct scholar at AEI and a member of AEI’s Council of Academic Advisers. He is also a professor of law at the George Mason University School of Law. Before joining the faculty in June 2007, he was a professor of government at Cornell University for 27 years. Mr. Rabkin is a renowned scholar in international law and a member of the board of directors of the United States Institute of Peace and Center for Individual Rights. His full-length books include “Law Without Nations?” (Princeton University Press, 2005), “The Case for Sovereignty” (AEI Press, 2004), “Why Sovereignty Matters” (AEI Press, 1998), and “Judicial Compulsions: How Public Law Distorts Public Policy” (Basic Books, 1989). He also coedited (with L. Gordon Crovitz) “The Fettered Presidency, Legal Limitations and the Conditions of Responsible Policymaking” (AEI Press, 1989). He has written numerous chapters in edited books, articles in academic journals, and essays.
Nicholas Quinn Rosenkranz is a professor of law at Georgetown University Law School, where he teaches constitutional law and federal jurisdiction. A member of the New York Bar and the US Supreme Court Bar, Mr. Rosenkranz writes articles for the Harvard Law Review and the Stanford Law Review and has served and advised the federal government in a variety of capacities. He clerked for Judge Frank H. Easterbrook on the US Court of Appeals for the Seventh Circuit (1999–2000) and for Justice Anthony M. Kennedy at the US Supreme Court (October term 2001). He served as an attorney-adviser at the Office of Legal Counsel in the US Department of Justice (November 2002–July 2004). He often testifies before Congress as a constitutional expert — most recently before the Senate Judiciary Committee regarding the nomination of Loretta Lynch to be attorney general of the United States. He has also filed briefs and presented oral arguments before the US Supreme Court.
Gary J. Schmitt is codirector of the Marilyn Ware Center for Security Studies at AEI and the director of AEI’s Program on American Citizenship. He is a former staff director of the US Senate Select Committee on Intelligence. He was executive director of the President’s Foreign Intelligence Advisory Board during former President Ronald Reagan’s second term. Dr. Schmitt’s security work focuses on longer-term strategic issues that will affect America’s security at home and its ability to lead abroad, while his work in the area of citizenship focuses on challenges to maintaining and sustaining a strong civic culture in America. He is the author or contributing editor of several volumes, the latest being, with Cheryl Miller, “Trendsetting Charter Schools: Raising the Bar for Civic Education” (Rowman & Littlefield, 2015) and “A Hard Look at Hard Power: Assessing the Defense Capabilities of Key US Allies and Security Partners” (Strategic Studies Institute, 2015). Dr. Schmitt is also the author of numerous essays on the separation of power and the American presidency.
Kevin C. Walsh is a professor of law at University of Richmond School of Law and writes in the areas of federal jurisdiction and constitutional law. His scholarship focuses on doctrines that define the scope of federal judicial power, and his work has appeared in the Stanford Law Review, New York University Law Review, and Hastings Constitutional Law Quarterly, among others. Before joining the Richmond Law faculty, Mr. Walsh practiced law at Hunton & Williams LLP and was a visiting assistant professor at Villanova University School of Law. After graduating from Harvard Law School, he clerked for Associate Justice Antonin Scalia of the Supreme Court of the United States and for Judge Paul V. Niemeyer of the United States Court of Appeals for the Fourth Circuit.
Adam J. White is a visiting fellow at the Hoover Institution. Before joining Hoover, he was an adjunct fellow at the Manhattan Institute. He has practiced law with Boyden Gray & Associates, writing briefs on constitutional and regulatory issues in the Supreme Court and various other federal courts. Previously, he was a senior associate with Baker Botts. He clerked for Judge David B. Sentelle of the US Court of Appeals for the DC Circuit. In 2015 he was appointed to the leadership council of the American Bar Association’s Section of Administrative Law and Regulatory Practice, where he cochairs the Judicial Review committee and codirects its Supreme Court series. He is also a member of the executive committee of the Federalist Society’s Administrative Law & Regulation Practice Group. Mr. White writes regularly on the courts and the administrative state for numerous outlets. He is a contributing editor with National Affairs, The New Atlantis, and City Journal and a contributor to the Yale Journal on Regulation’s blog, “Notice and Comment.”