Finally, Justice Kavanaugh

Justice Markandey Katju
Justice Markandey Katju


Judge Brett Kavanaugh’s nomination has been confirmed by the US Senate, October 6, and within hours he was sworn in by Chief Justice John Robert, making him ‘Justice Kavanaugh’.

Why was there such a hue and cry over his nomination?

There were two reasons:

1) He had allegedly committed sexual molestations when he was a teenager and

2) He will tilt the US Supreme Court to the right, and maybe reverse Roe v Wade.

I have already expressed my view on the first point in my piece ‘ In defense of Judge Kavanaugh’ published in indica ( So I may deal with the second.

Judge Kavanaugh belongs to the school of thinking to which I also belong – namely, that it is ordinarily the job of the legislature, not the judiciary, to make laws. I expressed my opinion in some detail on this subject in my judgment in the Indian Supreme Court in Divisional Manager, Aravali Golf Course vs Chander Haas (

There is separation of powers in the Constitution, following Montesquieu’s theory, and each of the three organs of the state should ordinarily confine themselves to their own domain, and not encroach into another’s, otherwise the delicate balance in the Constitution will be upset and there will be chaos. So judges should exercise restraint and not try to run the government or behave like emperors.

No doubt the court can hold a law made by the legislature unconstitutional, as held in Marbury v Madison ( by the US Supreme Court in 1803, but this is a grave step not to be taken lightly. As the famous American jurist Alexander Bickel pointed out, “Judicial review is a counter majoritarian force in our system, since when the Supreme Court declares unconstitutional a legislative Act or an act of an elected executive, it thwarts the will of the people being exercised through their representatives ” (see Bickel’s ‘Least Dangerous Branch’). The court must not seek an unnecessary confrontation with the legislature, since the latter consists of democratically elected representatives of the people.

On the one hand the court does have the power to invalidate a statute, on the other hand this power must be sparingly exercised. So when should it be exercised?

The answer to this question was given by Prof James Bradley Thayer of Harvard University in an article titled ‘The Origin and Scope of the American Doctrine of Constitutional Law,’ published in Harvard Law Review in 1893.

Prof Thayer says that in exercising the power of judicial review the court must give full and fair play to that wide margin of considerations which address themselves only to the practical judgment of a legislative body. A law should be held unconstitutional only when the legislature has not merely made a mistake in the sense of apparently breaching a constitutional provision, but has made a very clear one, so clear that it is not open to rational doubt. So the court should declare a statute unconstitutional not simply because it is possible to take that view, but when that is the only possible view.

This was the approach of the celebrated Justices Holmes, Brandeis and Frankfurter of the US Supreme Court, who were all disciples of Prof Thayer (see judgment of Justice Holmes in Lochner vs New York) This rule recognizes that having regard to the great, complex ever unfolding exigencies of government, much which may seem unconstitutional to one man, or body of men, may not seem so to another, that there are often a range of choices before the legislature, that in such cases the Constitution does not impose upon the legislature a specific choice, but leaves that for the legislature to decide, and that Courts cannot interfere merely because it regards the legislature’s choice unwise or undesirable.

The court must respect the legislature, since the latter consists of democratically elected persons representing the people’s will, and in a democracy the people are supreme.

If judicial restraint, which Judge Kavanaugh and I believe in, is regarded outmoded and antiquated, and judicial aggression is to become the rule, as was witnessed in the 1930s when the US Supreme Court was striking down President Franklin Roosevelt’s New Deal legislation, and as again witnessed in the decision of the court in Obergefell v Hodges (, several issues arise:

Firstly, how legitimate is government by unelected judges in a democracy? Secondly, is there to be anything beyond the reach of their authority ? Thirdly, if the Supreme Court is to be the ultimate policy making body without accountability, how can it avoid the corrupting affects of raw power?

And lastly, can nine persons master the complexities of every phase of American life? Do they have the administrative and technical expertise or the resources for this? Having said my bit, let the people decide whether Judge Kavanaugh was a right choice or not? I personally think he was.

As for the apprehension that Judge Kavanaugh will vote to reverse Roe v Wade, in my opinion this apprehension is unfounded. Judge Kavanaugh is a conservative judge who knows that long-standing precedents are not to be lightly disturbed, even if one regards them wrong.

It may be recalled that the Roe v Wade decision was issued in 1973, and that when another case regarding abortion, Planned Parenthood v Casey decided in 1992, came before the US Supreme Court, Justices Sandra Day O’Connor and Souter, who regarded Roe vs Wade a wrong judgment, yet chose to follow it because they felt it was a long-standing precedent. Now in 2018 surely judges will not overturn it.


[Justice Markandey Katju, former Judge, Supreme Court of India. The views expressed are his own]


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