Brett Kavanaugh Flunks His First Test as an Originalist

In his 2018 confirmation hearings before the Senate Judiciary Committee, Supreme Court nominee Brett Kavanaugh was asked by Sen. Mike Lee (R-Utah) whether or not he considered himself to be an originalist. “Originalism refers to basically textualism applied in the constitutional sphere, with an eye toward identifying the original public meaning of the constitutional text at issue,” Lee observed. So, “for our purposes today,” Lee asked the nominee, “you’re an originalist?” “That’s correct,” Kavanaugh promptly replied.

Many fans of originalism were no doubt heartened by that answer. Unfortunately for them, Kavanaugh just flunked his first big test as an originalist on the Supreme Court.

The test came last week in the case of Timbs v. Indiana. The matter arose in 2013 when a man named Tyson Timbs was arrested on drug charges and sentenced to one year on home detention and five years on probation. A few months after his arrest, the state of Indiana also moved to seize Timbs’ brand new Land Rover LR2, a vehicle worth around $40,000. But a state trial court rejected that civil asset forfeiture on the grounds that it would be “grossly disproportionate to the gravity of [Timbs’] offense” and therefore in violation of the Eighth Amendment to the U.S. Constitution, which forbids the imposition of “excessive fines.”

The Indiana Supreme Court later reversed that judgment. “We conclude the Excessive Fines Clause does not bar the State from forfeiting Defendant’s vehicle because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment,” the state’s high court said.

The issue before the U.S. Supreme Court in Timbs v. Indiana, therefore, was whether or not the Excessive Fines Clause should bind the states just as it binds the federal government. Since the late 19th century, the Supreme Court has been applying—or incorporating—the various provisions contained in the Bill of Rights against the states via the 14th Amendment, which says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” The issue in Timbs, in other words, boiled down to this: if the Free Speech Clause of the First Amendment applies against the states (it does), then the Excessive Fines Clause of the Eighth Amendment deserves the same treatment.

The Supreme Court agreed with that assessment and ruled unanimously in favor of Tyson Timbs, holding that the Excessive Fines Clause does indeed apply against the states.

But the Court was not unanimous in its reasoning. The majority opinion, written by Justice Ruth Bader Ginsburg and joined by Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh, held that the Excessive Fines Clause is “incorporated by the Due Process Clause of the Fourteenth Amendment.”

Writing separately, Justice Clarence Thomas explained that while he agreed that the ban on excessive fines should be applied against the states, he “cannot agree,” as a matter of originalism, “with the route the Court takes to reach this conclusion. Instead of reading the Fourteenth Amendment’s Due Process Clause to encompass a substantive right that has nothing to do with ‘process,” Thomas wrote, “I would hold that the right to be free from excessive fines is one of the ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment.”

This is not a new position from Thomas. In the 2010 case of McDonald v. Chicago, which asked whether the Second Amendment applied against the states, Thomas spelled out his originalist interpretation of the Privileges or Immunities Clause in a lengthy concurring opinion. “I believe the original meaning of the Fourteenth Amendment offers a superior alternative,” Thomas wrote, “and that a return to that meaning would allow this Court to enforce the rights that the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.” It is no surprise that Thomas re-upped that interpretation in Timbs.

One key difference from 2010 is that Thomas now has a bit of company on the bench. “As an original matter,” Justice Neil Gorsuch wrote last week in his own solo Timbs concurrence, “I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause.” But, because “nothing in this case turns on that question,” Gorsuch continued, he said he was willing to go along with the majority’s non-originalist holding this time around.

Thomas and Gorsuch are both self-avowed originalists, so it is fitting that they would either explain (Thomas) or at least acknowledge (Gorsuch) their heterodox views in a major constitutional case such as Timbs. For an originalist judge, it is often an uphill battle, and one of the best ways to gain ground in the war of ideas is by writing a persuasive opinion, typically penned in concurrence or dissent. How else are you going to change minds and set the foundation for winning future cases?

Which brings us back to Brett Kavanaugh. Where, you may be wondering, was the Court’s newest self-described originalist in last week’s Timbs legal wrangling? Did Kavanaugh also explain where he stands on the crucial debate over the original meaning of the 14th Amendment? Did he say whether or not he agrees with Thomas? Did he perhaps lay out a different originalist take of his own? Alas, Kavanaugh did none of those things. He did not bother to weigh in at all.

If Brett Kavanaugh is a committed originalist, you would never know it based on his complacent behavior in Timbs v. Indiana.