Searching for Alex Kozinski

The controversial 9th Circuit judge on free speech, privacy, and why he didn't mind the Kelo decision

Shikha Dalmia from the July 2006 issue

Judge Alex Kozinski was born to Holocaust survivors in Communist Romania, emigrating to America at age 12. Four decades later, he enjoys a reputation as—to quote the legal luminary Richard Posner—“one of the best and smartest judges in the country.” Famous for his witty, acerbic writing and his libertarian inclinations, he is perennially cited as a potential appointee to the U.S. Supreme Court—and is just as perennially passed over. He is, indeed, the founder and sole member of OOPPSCA: the Organization of People Patiently Seeking Court Appointment.

Kozinski, 55, built his judicial reputation on the U.S. Court of Appeals for the 9th Circuit, where he has spent the last two decades doing daily battle with judges of both the left and the right. “I disagree with the liberals on the bench half of the time,” he chuckles, “and the conservatives the other half.” The 9th Circuit is widely called the 9th Circus because of its penchant for digging new legal ground even in the face of clear guiding precedent, a habit that makes it one of the most reversed courts in the country. Kozinski’s incorrigible impishness—he amuses himself in restaurants by blowing the cover off straws as far as he can—could easily qualify him as the court’s ringleader. But he takes his job of applying the law very seriously.

Kozinski, now married with three children, was a late intellectual bloomer who, before graduating at the top of his law class at UCLA, wiled away his time wooing women in such unusual places as television’s Dating Game, which he won with an audaciously smarmy pick-up line: “Hello, the flower of my heart.” That unctuousness is totally absent from his legal writings, which feature a razor-sharp analytic skill.

Consider United States v. Ramirez-Lopez, a 2003 case involving an illegal Mexican immigrant accused of smuggling people across the border. The government deported most of the witnesses attesting to Lopez’s innocence before his attorney could interview them but detained everyone willing to testify to his guilt. Not surprisingly, Lopez got a 78-month prison sentence. But instead of declaring a mistrial on appeal, the 9th Circuit upheld the verdict.

Kozinski, in his dissent, constructed a bitingly funny dialogue in which Lopez’s attorney explains to his hapless client why denying his due process rights was necessary to ensure him a fair trial. So effective was Kozinski’s parody of the court’s circuitous logic that, despite its legal victory, the government dropped the charges against Lopez and suspended his sentence.

In another famous dissent, Kozinski took on the court’s liberal judges for denying the right of an individual to bear arms. “The panel’s labored effort to smother the Second Amendment by sheer body weight,” he wrote, “has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it.” Kozinski is also a great ally of the First Amendment, defending the free speech rights of flag burners and homophobes alike. All that, combined with his hatred of statism and his enthusiasm for the free market, has earned him a reputation as one of the most libertarian judges in the country.

Yet when he visited Michigan State University in April, Kozinski, who lives in the Los Angeles area, was uncharacteristically demure on most matters libertarian. Over the course of two days that included a private dinner with fellow jurists in the area, a public lecture, and a morning-after follow-up event, he tried to duck questions about the Bush administration’s record on civil liberties. He disagreed in only the mildest terms with the Supreme Court’s reversal of his court’s opinion—and his concurrence—in the medical marijuana case Raich v. Gonzalez. (Raich tested the limits of the federal government’s authority to override state drug laws. Kozinski had stood up for the states, while the Supremes sided with the feds.) And in contrast to some of his previous writings, he sounded positively mainstream on subjects such as racial preferences and capital punishment.

In fact, his most vocal comments were directed against his libertarian allies. He even endorsed the Supreme Court’s ruling in Kelo v. New London, dismissing the popular outrage at a local government’s attempts to take property from middle-class homeowners and hand it to rich developers. “Who was that man,” one justice of the Michigan Supreme Court asked after his dinner comments, “and what has he done with Alex Kozinski?”

During Kozinski’s visit he sat down with Shikha Dalmia, a senior analyst with the Reason Foundation, who asked about all those issues and more.

Reason: What are your primary memories of growing up in Romania?

Alex Kozinski: That they threw rocks at me on the way to the synagogue for Sunday school. They also threw rocks at my father on the way to his synagogue. The Russians threw rocks at my grandfather on the way to his synagogue. So that’s the connection, in a sense, between Romanian and Russian Jews.

Reason: What about the statism in Romania? How did you react to that?

Kozinski: I was a very committed communist when I was there. I believed in communism, and I thought it was the wave of the future. When my parents applied to leave, I thought it was a good thing because I’d be able to educate the workers of the West that they were being enslaved by capitalist exploiters.

When we arrived in Vienna, I discovered bubblegum and chocolate. These things were nonexistent in Romania, and I immediately became a capitalist. I was easily bought off.

Reason: Who influenced your thinking?

Kozinski: I read Ayn Rand when I was around 19. But I’d sort of worked it out on my own by then. I liked The Fountainhead quite a bit. She was a very fine writer and by and large her philosophy has legs. But there was a lot of stuff she said that I’m skeptical about. She had weird notions about women, like they want to be submissive in sex. There’s nothing in her writings that relates to compassion or empathy—although nothing precludes it, of course. Her rugged individualism implied that helping others because you felt compassion for them is somehow a lesser thing.

     But my father survived because people risked their lives to get him food. And he too got an affirmative pleasure out of being helpful to people. For me, the idea of altruism and selfishness merge because I enjoy helping people. I don’t feel like it’s my responsibility to do it. If it was, I wouldn’t enjoy doing it.

Reason: What other thinkers influenced you?

Kozinski: Milton Friedman. I have an undergraduate degree in economics. I had all the classical economists, and that helped. Adam Smith, David Ricardo. They ground me in economics. I went to UCLA as an undergraduate, and at that time the economics department of UCLA was known as University of Chicago at Los Angeles. Then around 1969, I went to a libertarian rally at the University of Southern California across town, and there were copies of Reason magazine. That was my introduction to Reason.

Reason: Would you say that the world is getting more or less libertarian?

Kozinski: The world is probably getting more libertarian. Modern communications and modern trade are making it very difficult for modern governments to exercise controls. You can no longer keep ideas out of China. People can log onto the Internet; they’ve got television. It essentially becomes impossible to block ideas.

Reason: There is a countervailing tendency in technology: It also allows the authorities—whether the government or your employer—to keep tabs on you.

Kozinski: It is certainly easier to keep track of people, and that will be a threat to privacy. But I think people can work around it once they realize that they live in a fish bowl. They will take defensive measures. For instance, you don’t have to walk around with a cell phone if you don’t want to be tracked. You don’t have to use the Internet.

Reason: Has this new technology made us freer if we have to be afraid?

Kozinski: You don’t always need complete privacy. There are ways of getting it if you want it.

Reason: Can the courts play a role in protecting the freedom and privacy of individuals from their government or employers?

Kozinski: People tend to depend too much on the courts for protecting their liberties. Courts have a role to play, but people basically have to protect themselves by changing their behavior. If you are worried about outside people monitoring your e-mails, don’t e-mail. If you don’t want your actions tracked via a credit card, pay cash.

Reason: But isn’t the whole point of living in a free society that you have more and more choices? Your choices should grow with technology. If people have to act defensively, then technology is limiting their choices—or at least not advancing them very much.

Kozinski: If you can set up an e-mail system using your own servers, using nobody else’s lines, then you can have a perfectly secure system. You want to use other people’s telephone lines and other people’s networks, and you want to be protected from being monitored by them. You can try to sort out your privacy concerns contractually with your provider or employer, but it should be up to you.

Reason: But what about the government’s ability to access private information?

Kozinski: Government can get this information if you’re involved in suspected criminal activity. There are limits in a criminal investigation. They can’t come into your house and search for contraband without having probable cause. So they need a certain amount of evidence of criminal activity to invade your privacy and obtain your Internet records or anything else.

Reason: That’s what happens in a normal criminal investigation. What do you think of President Bush using the war on terrorism as a pretext to issue an executive order for wiretap surveillance without going to the FISA [Foreign Intelligence Surveillance Act] court to obtain a warrant?

Kozinski: That’s a legal issue, and when I get the case I’ll tell you.

Reason: Does your gut instinct say they went too far or that this was a legitimate use of the president’s powers for national security?

Kozinski: I can afford to have instincts about medicine because I don’t practice medicine, but I can’t afford to have instincts about law. When it comes to law, I have to follow the law. I don’t know enough about the case. But I’m not prepared to say offhand that it’s illegal. Presumably the president is doing it for a legitimate purpose. I don’t think he’s doing it because he’s interested in your sex life.

Reason: He might not be, but some future president might. Where do you draw the line?

Kozinski: It depends on the body count, doesn’t it? Fifty million dead? A hundred million dead? Or are you talking about destroying America as we know it? Destroying our industrial base or covering our fields with radioactive waste so we can’t grow any food for the next three millennia? I’d be willing to give up some privacy to prevent those things.

Reason: Are there any checks on executive authority in time of war? By ordering surveillance of phone conversations through an executive order, the president is effectively saying that he does not want to abide by the Fourth Amendment’s restrictions on warrantless searches and seizures. He does not even want to go to a rubber-stamp court like the FISA court to obtain permission. Is that going too far or not?

Kozinski: A rubber-stamp court? How do you know?

Reason: The FISA court certainly has a reputation of approving virtually all search warrant or surveillance requests from the government.

Kozinski: Possibly because the government is very careful to go to the court only when it’s absolutely necessary. You may be right, but I haven’t seen any evidence that the court is a rubber-stamp body. People want to believe that, but I don’t think it’s an informed view by anybody who’s actually looked at what the court does.

Reason: You are the staunchest defender of free speech on the 9th Circuit court, arguing that the publication of the names and information about doctors targeted for assassination by abortionists is not incitement to violence and worthy of First Amendment protections. Do you recognize any limits to free speech?

Kozinski: I believe that the First and the Second Amendments are the ultimate barriers against totalitarianism. Of course, there are limits, but they are very broad. It all varies from case to case—what the body count is. I am not categorically always on the side of free speech or privacy or anything else. It’s possible to hurt people with speech through libel, defamation, slander, or blackmail. But in general, I think the remedy in these cases is more speech. I’m very skeptical of the government coming in and prohibiting or punishing speech.

Reason: Do you see any big threats to free speech out there today?

Kozinski: There are always threats to free speech. Government doesn’t like to be criticized. Owners of copyrights and other intellectual property rights are very grabby. They think they own everything, or they think they invented everything. And the big problem is drawing the line between what’s protected by copyright and what’s in the public domain.

     Nobody writes anything from scratch. We all build on the past from a shared public domain of ideas. We use copyrighted ideas to communicate with each other. For instance, when you say someone has a Barbie personality, it describes something without having to go into a thousand details. But Mattel, the inventor of Barbie, hates it. People who own those trademarks and copyrights want to control the way people communicate, and they have the ear of Congress right now. Congress just extended copyright terms again [in 1998].

Reason: So have we tipped the balance too much on the side of inventors as opposed to society’s interest in accessing their ideas when it comes to intellectual property rights?

Kozinski: The problem is that some people think of copyrights as an extension of property rights. And that’s OK. But maintaining a public domain makes property more valuable. A lot of things that copyright owners complain about are things that are actually good for them. Movie studios were really worried about Betamax. It seems quaint now, but they almost killed the video store business. It’s now a big source of revenue for them.

Reason: You have written that you’re generally satisfied with the way the Supreme Court has protected free speech rights. Do you still feel that way after it upheld the campaign finance restrictions, which are effectively a restriction on political speech?

Kozinski: Well, they had done that before in Buckley v. Valeo [a 1976 ruling that upheld campaign finance laws]. I was disappointed they didn’t cut back on Buckley, but they’re not perfect. By and large, they’ve been pretty effective on free speech. We have some Supreme Court justices, such as Justice Kennedy, who are very protective of free speech. He usually picks up a majority. It doesn’t mean that I wouldn’t go farther in some areas.

Reason: The 9th Circuit has granted an en banc hearing to a Hawaii case that challenges the right of a private school to offer preferential admissions and scholarships to native Hawaiian kids—in essence banning even private uses of preferences. Where do you stand on racial preferences?

Kozinski: It’s a very tough issue, just as the subject of prayer in public schools is difficult. When you have a limited role for government, then these kinds of issues go away. If you don’t have a public school system, you don’t
have to worry about prayer in public schools. The whole idea of separation of church and state does not come up. When you force people together in a public school system, you get some benefits in that people meet others who are different from themselves. On the other hand, you have children spending a big chunk of their time growing up under the control of teachers, who are government officials. They teach morals in areas such as religion, homosexuality, premarital sex, and drug use that are different from what parents wish to teach.

     We have laws against discrimination, and we have to enforce the laws. By and large, if private parties want to use racial preferences, it probably should be OK. Whether it’s OK under our laws, I don’t know. But in this country there is a history of discrimination. So I certainly don’t see any problem with any private party wanting to correct for that.

Reason: So are you making a distinction between benevolent and nonbenevolent uses of preferences by private parties?

Kozinski: I am tempted to do that, although sometimes it’s hard to know what’s benevolent and what’s not. What’s benevolent for one isn’t benevolent for the other. It’s a zero-sum game.

     There are certain things individuals should be able to do with their own property that the state is not entitled to do. But we have constitutional protections, we have federal laws, we have state laws. It gets very difficult to navigate these things. We don’t live in an essentially libertarian society.

Reason: You had an interesting debate at the Cato Unbound Web site with Nobel Prize–winning economist James Buchanan recently where you said that you have a romantic attachment to the utopia of minimal government. But you also said this vision would not have allowed the goals of the New Deal and the Progressive Era to be fulfilled, and that you weren’t sure if that would be a good outcome. Have you rethought your commitment to minimal government?

Kozinski: It’s something to strive for, and by and large we ought to look for ways of minimizing governmental power. At the same time, we ought to realize that we are doing very well as a country. The libertarian assumption is that if we somehow undid the New Deal, we’d be even better off today. I don’t know if that’s the case. If you study the attitude of people during the Depression era, they expected government to solve their problems. And this was before the welfare state, when people were more rugged individualists. If the New Deal hadn’t happened, there may have been worse social disruption.

     In theory, in a purely minimalist libertarian state, one would have the most efficient, most productive economy. However, there may well be political forces in our society such that the closer you get to minimal government, the more some people get dissatisfied with their own situation and expect government to come in and forge solutions. If it doesn’t, you get social upheaval that might well change the system radically rather than in the small way that government does.

     We tend to minimize the alternative realities that might’ve happened if things had happened differently. It is easy to say that we should have found a solution that lifts all boats, but sometimes people have to perceive that government will do something to maintain fairness. That can help keep the peace, and that is a big public good.

Reason: What did you think of the Supreme Court’s ruling in Kelo v. New London giving the green light to a Connecticut community to take away the private property of low-income folks and hand it to rich developers to expand the city’s tax revenues?

Kozinski: I was really surprised by all the uproar over Kelo. I just can’t imagine how it could have come out any other way.

Reason: You don’t see a problem with government dispossessing people—

Kozinski: They were paid for it. They were not dispossessed.

Reason: But they didn’t want to be moved. They didn’t want to be paid off. You don’t see a problem with government taking away private property, not for a public use like building roads, but for other private uses?

Kozinski: What’s the difference between taking property for public roads or anything else? Do only public automobiles travel on public roads? I don’t understand why it’s a problem. If the government thinks the city will benefit by having a road there instead of having your house so that people can drive their private cars on it, then it has to make that decision. Who owns the road really doesn’t matter. What matters is that it makes it easier for other people to get from point A to point B using their private vehicles for private purposes. You could say “but it’s my house and my private purpose is more important than your private purpose.” But we live in a society.

     When you have people living in such close proximity, someone has to decide the question of whether you get to use your house for your purposes or whether other people use it to drive to work or other people use it to run a business, and it is not completely up to you. You are objecting to Kelo because property was taken for privately owned businesses. But the businesses provide services to lots of people. So if the city thinks there should be a private business instead of a private house, it has to make that decision. If you want to decide on your own, you can go live in a forest.

Reason: And you’re comfortable with government making the decisions in the way that it does?

Kozinski: I don’t see who else could make them. Would you rather have courts make those decisions? The Constitution clearly says that the government can use its eminent domain power to take away property.

Reason: Is there any limit to when and how the government can take property?

Kozinski: It has to pay for it. And it has to go through the normal process of government to make a decision and follow the due process.

Reason: Another controversial ruling by the Supreme Court in the last year was in the Raich case. The court overruled California’s law permitting the use of marijuana for medical purposes, reversing your court. What do you think of that?

Kozinski: I was surprised by it. More than that, I was disappointed by it.

The Court has certainly decided that the federal government’s power under the Commerce Clause is very broad. It’s probably inevitable because it is very difficult to limit this power.

Reason: With Raich, the Supreme Court seemed to go back on the precedent it established in United States v. Lopez, when it ruled that the federal  government could not regulate possession of guns in a school under the Commerce Clause.

Kozinski: I think what they’ve basically said is if it’s a commercial enterprise then government can control it. Lopez was not a commercial situation since it was just about possession.

Reason: Except Raich was about the personal use—or possession—of marijuana. It wasn’t about the sale of marijuana. So it’s not all that different from the Lopez case.

Kozinski: In Raich they were growing something that’s a commercial crop. Marijuana is a commercial crop. Whereas Lopez was just possession of a gun. It’s not an air-tight distinction, but it is one that they have obviously drawn.

Reason: You are a defender of capital punishment. But because you visited an inmate who was facing execution, the attorney general of California wanted you disbarred from all capital punishment cases. How have you managed to rile both sides on this issue?

Kozinski: There is no doubt that the Constitution permits capital punishment. At the same time, we have to make sure we enforce it on people who really deserve it and who are guilty. There have been quite a few people who have been found totally innocent. I’ve written opinions upholding the death sentence, and I’ve written opinions going the other way.

     As for the inmate I visited, he was housed on death row but he was no longer subject to the death penalty. I saw the gas chamber when I was there. I saw what people look like on death row and how they’re treated. It just sort of informs one, makes one more aware of what people are dealing with.

     I think that the attorney general doesn’t like it that I’m supposedly a conservative judge who often goes against him. I have ruled against the death penalty in about half of the cases that have come to me.

Reason: Bush said that he wants to appoint more strict constructionists like Antonin Scalia and Clarence Thomas to the Supreme Court. Are you a strict constructionist?

Kozinski: I’m a strict constructionist, but probably not as strict as Scalia and Thomas. I see more ambiguities. I find it more difficult to tell exactly what the Framers would have thought about things today. You can argue by analogy as to what James Madison would have thought about the Internet. But when the First Amendment was adopted, “press” really meant “press.” Now you get information through the airwaves, the Internet, or a cell phone. So you have to apply the words to a changing world. It’s an art more than a science, and to some extent it depends a lot on what you think the Founders thought.

Reason: How do you practice this art?

Kozinski: Well, you have to start with the words. If you look at some of the opinions of Justice William O. Douglas, for example, he wasn’t even bothered with the words. And that’s problematic. But though words are important, they are not like weights and measures, that there’re always 50 grams: 50 grams today, 50 grams yesterday, 50 grams 100 years ago. Words are cultural references. They’re proxies for ideas that people share, and the ideas that we share are different in material respects from those of the Founding Fathers. We view the world in different ways even when we use the same words as they did.

Reason: You sound a bit like John Roberts and Sam Alito during their confirmation hearings. Do you have an eye toward a nomination to the Supreme Court? Does that influence what you say now?

Kozinski: I’ve written for 20 years, so I don’t think anybody has any doubt about what my record is. But it is very hard to say categorically that you are always on one side of the issue or the other.

Reason: Has your long record made you too radioactive to be nominated to the Supreme Court?

Kozinski: I’m not going to answer this question.

Reason: Then can you tell us which justice or judge out there most exemplifies your own approach to law?

Kozinski: Judge Kozinski.