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Most cases it doesn’t matter. Most cases, the law is not really political; they can’t be divided into liberal and conservative results. And in most cases the result is pretty clear. But the kind of cases that are in the headlines—the kind of cases where the issues are sort of close, where the law is difficult, where minds differ, where perhaps the Supreme Court hasn’t been entirely clear or hasn’t ruled yet—the 9th Circuit for many years did tend to be quite a bit more liberal than the Supreme Court. And the Supreme Court having the last word, the 9th Circuit would get reversed. It’s been less so in recent years, to a large extent because there have been quite a few middle-of-the-road judges appointed both by Democratic and Republican presidents.
reason: I imagine that when you were in law school in the ’70s there wasn’t much of what you might describe as a libertarian legal movement and everything that comes with that. We’ve seen a lot of interesting flowerings: Randy Barnett’s work with Commerce Clause, the ObamaCare case, the landmark gun decisions in 2008 and 2010. What’s your perspective on how the libertarian movement has progressed and evolved over time?
Kozinski: Well, law schools have been and still tend to be very liberal places. That’s just what they are. So that is an environment that is half-welcoming to libertarians. I agreed with about half of what my professors said. I disagreed really strongly about the other half. But self-identified libertarians were quite rare when I was going to law school. There was a Libertarian Law Student Association bulletin board and you needed three people to actually go down physically to the administration building in order to get that little space on the board. I mean, prove that you actually have three people.
reason: Can you explain the ObamaCare decision? What is the guidance about the Commerce Clause that one could interpret?
Kozinski: Well, the Commerce Clause has been for the last 50 or 60 years—and basically still is—the “government can do anything” clause. It’s how the Supreme Court has interpreted it. There are in Chief Justice Roberts’ opinions certainly limitations in place. But it’s a long ways from saying that the government is restrained in any meaningful way in what they choose to do. It’s inherent in the problem; it’s inherent in commerce. If you regulate commerce, commerce affects everything. And so if you have the power to regulate commerce, you must by necessity have the power to regulate other things.
The problem is not in the interpretation, it’s in the clause itself. You can cut things down a little bit and say, “Well, it’s too far away; it’s too remote.” But you’re really looking at the margins. Everything we do, the nature of our existence in mainly a capitalist society, but anywhere we depend on commerce. We depend on commerce to bring us the things that we need for our existence to make us prosperous and to make us happy. If the government has authority to regulate it, it has authority to regulate it. It’s very difficult to give the clause a truly restricted meaning.
The restrictions, it seems to me, have to come from the other parts of the Constitution that set limits about what the government can do to abridge our rights. First Amendment, Second Amendment, Third Amendment—God forbid we should have troops quartered in your home—the Fourth Amendment is increasingly more important with electronic home surveillance. It’s a highly contentious area as to what the government can do to look at the people’s lives and invade people’s privacy. It seems to me that that’s where the battleground is.
reason: You’ve been critical about erosions in the Fourth Amendment over time. What are some of the benchmark cases that have contributed to that erosion? And what are the conditions in society or conditions in the making of law that have contributed to this kind of erosion or degradation?
Kozinski: A lot of it has had to do with the evolution of technology and the effort of the law to keep pace with technology. Just think of yourself in the world when the Fourth Amendment was passed. It was a time when we didn’t have fast transportation, we didn’t have communication besides face-to-face with whoever’s in the room—telephone, telegraph, Internet, any of these things.
The idea was that the Fourth Amendment protected places. If you had your money in your mattress, let’s say, or if you had a safe or a desk with papers in it, or if you were at home and you had a conversation with somebody face-to-face, well, the police couldn’t listen in on it. The police couldn’t come in and take the stuff without getting a warrant, without complying with the Fourth Amendment and probable cause and so on.
All of that broke down with the telephone, because of what happened in a case in 1929. The police tapped somebody’s line. So the guy was in his house and talked to somebody on the other end. The police were outside on the telephone pole where they tapped the line and listened to the conversation. And the claim was, “Look, this is an invasion of privacy. It was an invasion of my protected sphere of what I expect to be held secure from the government.” The Supreme Court said “No. Since the telephone pole doesn’t belong to the homeowner, it belongs to the telephone company. The wires don’t belong to anybody. There’s no trespass. No Fourth Amendment violation.”
That was in place for about 40 years, and finally in 1967 the Supreme Court in a case by the name of Katz came up with the idea that they’d finally had enough. What happened in Katz was: Katz was making a bet or having some sort of an illegal conversation involving gambling in a phone booth, and the police knew he was going to be there because he did this every day, so they had a microphone on the top of the phone booth and they managed to hear his half of the conversation. Based on that, they convicted him of a crime. He said: “Violation of the Fourth Amendment. They didn’t have a warrant; they didn’t have probable cause.” The government answered, “But we didn’t invade the space. He was in a phone booth and outside.” The Supreme Court said, “We’re going to jettison the idea of trespass and what we’re going to have is a doctrine based on a ‘reasonable expectation of privacy.’ ”
So, what the Fourth Amendment now protects, in addition to places, it protects people’s reasonable expectation of privacy. Which is good—if you have a reasonable expectation of privacy.
In a world where people use phone booths to have telephone conversations, the Supreme Court could say that what you say on the telephone is private. But what happens in a world where people shout in their cell phones in the supermarket and in the airport? You can hear anybody’s conversation just like you could have heard Katz’s conversation with the door of the booth open. The Supreme Court could say—and I don’t think we’re going there, I’m just trying to illustrate the problem for you—“Well, phone conversations are really no longer considered private. We have decided to no longer consider phone conversations private because look at how people treat them. They don’t treat them as private.”
So you’ve got that whole problem. You’ve got the problem of how you can now no longer communicate without passing a whole bunch of information through a bunch of third parties. Internet service providers, cable carriers, and so on.