“Those of you who’ve had the good fortune to be born in the United States simply have not known the absence of freedoms,” says Judge Alex Kozinski, Chief Justice of the U.S Court of Appeals for the 9th Circuit. “You can only imagine, but not experience, what it’s like to live in a society where these freedoms are absent.”
Born in 1950 to Holocaust survivors, Kozinski grew up as a committed communist in Bucharest, Romania. On his first trip outside of the Iron Curtain, in Vienna, Austria, he experienced forbidden luxuries like bubble gum and bananas. It was his first taste of freedom, and it caused him to become, in his words, “an instant capitalist.”
Today, Kozinski is responsible for some of the most influential, controversial and often hilarious legal decisions in the United States. The self-described libertarian challenged the early Obama administration over the issue of same-sex marriage, weighed in on whether a Barbie doll qualifies as a sex object, and, in one of the most influential dissents in recent memory, caused federal prosecutors to drop all charges against a defendant who’d been convicted of smuggling illegal immigrants across the U.S.-Mexico border.
In February, the blunt-spoken Kozinski sat down with Editor in Chief Matt Welch during Reason Weekend in Las Vegas for a wide-ranging discussion about freedom and the law, how new technologies affect our right to privacy, and why libertarians should be wary of embracing jury nullification.
For video of this interview, go to reason.com or use your smartphone to scan the QR code at left.
reason: You were born in Romania in 1950. To the extent that you remember your life before you were 12, can you share an aspect of what you thought was a normal childhood that in retrospect looks a little different?
Alex Kozinski: I grew up in communism and I considered myself a communist. My parents were careful not to teach me any wrong ideas, because it was well known that parents could get into trouble if children said the wrong thing. In fact, one time I did say something that sounded somewhat critical of the government, and my father almost lost his job over it. And they were finally persuaded that I was just a kid talking. But my father got a talking-to.
reason: Do you remember what you said?
Kozinski: There was a newspaper called Free Romania, and I was 7 years old. It was just people in my father’s office and they said “Do you know how to read?” And I said, “Oh, yes.” And they said, “Can you read here?” And I said, “Well, why is it called Free Romania? All those people are in prison.”
That didn’t go over well, and after that my father said, “Well, if you ever are in public and I’m there and I give you this signal [sniffs], you stop. You don’t say another word. You don’t explain. You just stop talking. And I said, “Well, what if they ask me questions?” He said, “Don’t worry, they’re not going to ask you questions.” And they never did. My father gave me the signal, I stopped talking, and I never got in trouble again.
But to me that was normal. The idea that you didn’t say certain things that you had in your head, that’s just the way life was. That food and consumer goods were there whenever the government could provide them. And if you happened to find something, you bought it because you never knew when something would be a necessity. To me, that was a normal way of life.
We were indoctrinated in school that everything that we have that’s good, we have to be grateful to the Communist Party. And I believed it in my heart that it was true. When we were leaving, you know, we’re going to be behind the Iron Curtain where people are oppressed by the voracious, greedy capitalists, and I knew that I would take this knowledge with me—this enlightenment with me—and I would teach the oppressed of the capitalist world of how bad off they were.
I was firmly of a mind to do that. I remember being on the train to Vienna and having these thoughts—and that’s the last time I remember having them. Then I got to Vienna and I discovered bubble gum and chocolate and bananas and things like that. And I became an instant capitalist. It was sort of like, “Whoa!”
And I think it stuck with me for my entire life. Having not only lived in an oppressive regime, but having been deluded by the government when I was a little kid, I accepted what I was taught. [The experience] taught me to be skeptical, and it taught me not to trust what others say, particularly if you are from the government. “I’m from the government and I’m here to help you”—I learned that that was always a big lie.
I’m intensely jealous of the freedoms we have and the freedoms we enjoy in this country. And I must say, all of you who had the good fortune to be born in the United States simply have not known the absence of those freedoms. You can only imagine but not really experience what it’s like to live in a society where those freedoms were absent. I think, perhaps, my understanding of what it is to lose these freedoms and how important it is to hold onto them is a little more intense than it would be had I been born in this country.
reason: How were your parents able to leave? Was it arduous to get out?
Kozinski: It was essentially impossible. Romania, unlike some other Eastern European countries, had no border with the West. So running the border was not a possibility. Unless the government allowed you to leave, you couldn’t do it, because you’d find yourself in another communist country.
They would allow some ethnic repatriation, and we were fortunate that they allowed Jews to leave. We learned later on that what was going on was, with the help of the American Jewish community, essentially Israel was buying Jews from the Romanian authorities. And it was not automatic. My father, having been a communist and having been a true believer, and having fought and bled for communism, he was sent to a concentration camp—the worst of the concentration camps—both for being a Jew and, the worst of the worst, he was a communist Jew. And he lived and fought and believed in it, and he had the misfortune of living to see his dream come true and see it crumble before his eyes.
I think he came to realize—I know he came to realize—that this kind of system, good as it may sound on paper or good as it may sound on first hearing about it, was a prescription for oppression. It was a prescription to give people power over other people that are not subject to lawful control or lawful checks, and that it inevitably leads to corruption; it inevitably leads to oppression. He came to realize that that’s the system that he helped put in place, and he decided to make all sacrifices to see his son—my mother was not an ardent communist but she of course was enjoying the benefits of being married to a high-ranking party member—but they both decided to give up what was a relatively good position in Romania and ask to leave.
And they got kicked out of their jobs. We were there for three and a half, four years, leading a hand-to-mouth existence. It was a big secret and I was not allowed to tell people at school, that we had asked to leave. Occasionally it would get found out and I would get harassed over it. But we made it through. Eventually our salvation came. But they had to give up everything that they had. We could leave with nothing in our pockets.
reason: Did you go pretty quickly from Vienna to California?
Kozinski: We spent a year in Vienna. I must say, again this is something that most of you here will never experience, but when the Jewish family service took up our case and asked us where we wanted to go, my father said, “I know this is probably hopeless, but if we could go to America that would be incredible.” So they said, “Well, we can try.” So we were there, and we never dreamed it would happen. It was just like being sent to the moon. Much to our surprise, after a few months of waiting the approval came through. Until we actually landed here, I couldn’t really believe it was happening.
reason: Did you speak a lick of English when you arrived?
Kozinski: Unfortunately I did. We had a trilingual household. My mother and I spoke German, my father and I spoke Romanian, and we all spoke Yiddish. In addition to that, I went to German school and I had tutors in English and piano and French. I learned English from a very fine, intelligent, well-educated woman, who unfortunately spoke English with a Romanian accent. So I think I might have been better off picking it up here. I still talk like her.
reason: When did you first get in touch with reason?
Kozinski: It was in 1970. I had heard something about libertarians and I thought it was “libertines” and my roommate disabused me of the notion. I said, “Well, it sounds interesting anyway.” I was at UCLA and they were having a rally at [the University of Southern California] so I made the trek all the way across town. I just wanted to see what these people had to say. I had been reading Ayn Rand; I think I’ve read every word she’s written at least once. I didn’t know there were people that had some of the same ideas I did. So I went to the rally, and it was sort of a ragtag rally. So there, standing near a card table was this smiling guy with what was then really dark hair in shirtsleeves with copies of reason. And I passed by and he engaged me in communication, in conversation. Well, you know [former reason editor] Manny Klausner, he hasn’t met a stranger. So we became instant friends. He says, “Here, take a magazine. Take a magazine, read it.” So I’ve been a friend of reason and a friend of Manny’s ever since. I’ve been educated in libertarian ideas and it’s been great.
reason: Do you describe yourself as a libertarian? Do you use labels or are labels not your friend when you want to be appointed as a judge?
Kozinski: You know, I was appointed by a Republican president. I was registered as a Republican at the time. I’m not even going to tell you what I am now. As a matter of fact, I’m not sure I remember. I generally describe myself as being libertarian in philosophy and not everybody fully understands what it means, but what I’ve found over the years is it winds up being a description that more and more people understand. I was afraid in the beginning that people would misunderstand what it means. I think more and more people have come to accept it. I used to describe it as someone who is a liberal at home but a conservative at work.
reason: The 9th Circuit, which you preside over, has a reputation as being super-flakey and the most liberal court in the country. Can you talk about that reputation?
Kozinski: There’s no doubt about it that for many years the 9th Circuit was at loggerheads with the Supreme Court, and to some extent still is. So the most contentious and difficult cutting-edge cases where there are sort of reasonable differences of opinion among judges, the 9th Circuit for many years was quite a bit more liberal than the Supreme Court. It’s a consequence of a number of factors, not the least of which [is that] President Carter appointed something like 10, 12, 13 judges who were some of the most liberal judges the world has ever seen to our court. And many of them, some of them—most of them!—are still there. Many of them are still quite active. Harry Pregerson, Steve Reinhardt: They decidedly view the world from a different perspective than does the Supreme Court.
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.
And under another line of cases, the government can obtain any information that you freely disclose to third parties. I’ll give you an example. If you keep your money in your mattress at home, they can’t touch it. They can’t look at it without getting a warrant. But if you give it to a bank, then you’ve disclosed it to a third party; it’s no longer private and the government can obtain it without complying with the Fourth Amendment. It’s a doctrine that has huge implications in the era of electronic communications, because basically we don’t ever communicate with each other anymore, except maybe in the bedroom, that doesn’t go through some sort of an electronic means. And this is a huge problem.
The Supreme Court Justice Sotomayor wrote about it in a case by the name of Jones. That was a case where they attached a GPS tracker to somebody’s car. And the Supreme Court said that was a violation of the Fourth Amendment because they attached the GPS tracker to the car. Leaving it open to the question: “What if they can track it without having to attach anything to the car?” Incredibly difficult, incredibly complex question. It really will test who we are and what we think about individual privacy when the Supreme Court finally addresses the issues head-on.
But, you know, every one of you can contribute to the answer to that question. Because this idea of a “reasonable expectation of privacy” is not so much what you expect but how we act as a society. If you post things on Facebook, if you put private photos on Facebook and other such social media sites, if you contribute to an environment where, as a society, we don’t view the privacy of certain communications and certain activities as being sacrosanct, as being something that we should not disclose to the public, then you contribute to an environment where, when the Court does look at it, it views it realistically in the world, and it’ll say, “Well, people must not care very much about the privacy of their private photos because look, they post all these on Facebook where the world can see them. They must not care so much about communications because they shout them out where everybody can hear them.”
So what I do is, if I’m in an airport and I hear someone loudly talking on a telephone, I make myself part of the conversation. I nod. If they say something sad I look glum. If they say a joke, I laugh. I genuinely want to make them know that I’m a part of their conversation. And I think it’s important for all of us to be aware of this and all of us to be aware that when you give up your own privacy, you’re not just giving up your own privacy, but you’re contributing to a society where the idea of privacy is undervalued.
And who is going to be the beneficiary of that? It’s going to be the government. Because you cannot deny the government anything that is open to any other party. That’s the rule, and it’s a fair one. If people treat things as not private; if people disclose them to everybody in the world, well, certainly law enforcement is entitled to that as well.
So be really careful of it. It’s a precious commodity. It’s something that we take for granted and it’s one of those things that’s going to go away so quickly and disappear, and it’ll all be our doing. We’ll look back on it and we’ll ask ourselves who did it and it’ll be like [the comic strip] Pogo: You met the enemy and he is us.
reason: Where does “the cloud” stand in all this?
Kozinski: Until further notice, I would not consider anything you put on the cloud private. Is that clear? I’m not saying it’s not going to be, but it’s a highly undecided question. Essentially, if it’s a new computer on your desk where the police actually have to go in and get the physical thing, it’s protected. It’s not protected from everything—obviously there’s probable cause, a warrant; they can get it. But it’s protected from unauthorized intrusion.
If it’s some place in the hands of third parties, it’s like your bank information. You think your bank information is private, but no, it’s not. You’ve disclosed your information to the bank, the government can get it. You disclose it to a third party in the cloud, the chances are very good that if the government wants it, it can take it.
Some of it depends on the people who run the Internet service providers, the people who handle the cloud storage. Some fight back. Google fought back when the Justice Department asked for certain queries by their users. Some other search engines I will not mention did not fight back. Some phone companies are cheery about giving out your location information, other phone companies will, for a fee, let law enforcement ping your phone. And they can ping it as often as they want and know exactly where you are by pinging your phone. Is there anybody here that doesn’t have at least one cell device on them right this minute? I didn’t think so. So when they ping all our phones they will find where the great libertarian conspiracy is located. Right here.
But they can do it. Some phone companies, for a fee, actually have a self-serve website where law enforcement can go in, ping your phone, and know exactly where you are. Pretty neat, huh? So anyway, the answer is, kiss it goodbye.
reason: Let’s work our way quickly down the amendment list. Maybe a happier story, or a more surprising story: Did you imagine when you were first getting involved in the law that the Second Amendment would be recognized as an individual right to bear arms? Was that something that you thought was in the cards in 1975 or 1982? How much of it was a surprise in 2008?
Kozinski: Certainly in 1975 there was no inkling at all. There was a Supreme Court case that everybody interpreted as—it didn’t exactly say that, but everybody interpreted as saying there is no individual right to bear arms. But then starting about the mid-’80s there was a series of very serious scholarly articles written in law journals that challenged that notion. And that’s the first time that I gave the matter any serious thought.
I didn’t have any particular reason to read about the Second Amendment. I didn’t have any cases, I just had general knowledge. But I saw the articles, and they were really quite persuasive. And once I saw the articles, I said: You know, ideas have consequences. And ideas that are well-reasoned and forcefully stated tend to eventually find their way to the courts and eventually find their way to cases and to our law.
One of the first of those articles was called, “The Embarrassing Second Amendment.” It was written by a liberal scholar who found it embarrassing to actually read the Second Amendment since it seemed to say there was an individual right to bear arms.
I think the Supreme Court got it right, but it was far from inevitable. The words of the Second Amendment are clear in one way, but I think they could be rationally interpreted the other way as well.
reason: You’re also a big fan of the First Amendment, and Chief Justice John Roberts has since come out as a pretty interesting defender of free speech. How would you assess the current court’s movement on free speech issues over the last five or six years?
Kozinski: Actually, when it comes to free speech, I think generally the conservatives tend to be as or more supportive of free speech as the liberals. Surprisingly. Eugene Volokh, my former law clerk who teaches at UCLA, a very famous law professor, really brilliant guy, once did an array of the justices on how friendly they are to the First Amendment. It turns out, the friendliest to the First Amendment is Anthony Kennedy, my former boss. And the least friendly is Steve Breyer. Kennedy was appointed by Ford to the 9th Circuit [and] by Reagan [to the Supreme Court]; Breyer was appointed by Clinton. So that tells you something.
I think the First Amendment is in very good shape. I was gratified to see the Citizens United opinion. I think it was clearly right and inevitable and I have no idea why people are tearing out their hair. I don’t see how it can come out any other way if you are honest with the First Amendment.
reason: You’re pretty well known as not just a colorful character but as a colorful writer. What’s your approach? Is this just an expression of your personality?
Kozinski: I think law ought to be intelligible. What I tell my law clerks is: “I want you to imagine that you have a younger sibling in college. So they’re a college senior maybe. And let’s say he came to you and said, ‘I want you to tell me what you’re working on today.’ ” Now, you’re not supposed to tell your family what you’re working on, but let’s just imagine. I say, “Could you explain in words that someone like that would understand?” If you can’t explain it in such a way that someone who is an intelligent and interested layperson would understand, then you really probably don’t understand it yourself.
Law is language. The way that laws are made, they’re only made of words. And it seems to me that a lot of times, courts tend to use ponderous language and obscure language because using clear words would expose the fact that they’re not very clear about what they’re doing. It’s much harder to write an opinion in clear, simple language.
The process of writing simply, I think—I hope—leads to opinions that are more easily applied, more transparent, and a better predictor. After all, people read opinions and they say, “How is this going to apply to my life?” We want things that people can apply to their lives and have some prediction of how the next case after that will come out.
Besides that, I don’t know. I get sort of bored reading opinions. I think once in a while saying something that’s a little bit different wakes people up.
reason: Why don’t you like jury nullification?
Kozinski: It’s lawlessness.
You know, at least with the legislature you can vote the rascals out, and it’s a law that we are ultimately responsible for. But the idea that your fate—whether you’re going to be found guilty or innocent, or whether you’re going to be found liable or not liable or the amount of damages you’re going to pay—is going to be up to the law made up by 12 people who have no constituency, who got elected to nothing, who will never get elected to anything again, who have no one to respond to, who you can’t kick out of office, and your fate, your future will depend on those 12 people making up the law on the spot—it’s a horrendous idea. It’s really one of the truly evil ideas.
We always think that what juries are going to do [in nullification] is take a law that they find unjust—that we all think is unjust—and they’re not going to apply it. But what about if they take a law that is just and they say, “We don’t like this defendant”? “We don’t like this defendant because it’s a corporation, we don’t like this defendant because he’s rich, or white or black, or we don’t like him because he has an accent. And we don’t have to follow the law, so we’re going to make up the law right now and find him guilty. Or find him liable. Or ruin him financially. Because we can make up the law. We can do what the legislature does when the people assemble, we can do it in this room, we 12.” It’s a really frightening idea. If anybody has ever been in front of a jury and really had their fate in their hands, the last thing you want is for them to be able to make up the law as they wish.