Supreme Court

SCOTUS Shortlister Raymond Kethledge on Free Speech, Gun Rights, Originalism, and Chevron Deference

Reviewing the record of a possible replacement for Justice Anthony Kennedy.



Judge Raymond Kethledge of the U.S. Court of Appeals for the 6th Circuit is reportedly among a handful of finalists under consideration by President Donald Trump to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court.

Kethledge, 51, attended law school at the University of Michigan and went on to clerk for Justice Kennedy at SCOTUS. In 2008, President George W. Bush appointed him to the 6th Circuit. During his decade on the bench, Kethledge has had the opportunity to weigh in on some of the most contentious issues in American law. His judicial record therefore offers a good indication of what sort of Supreme Court justice he might turn out to be.

He is perhaps best known to the general public for his 2016 ruling in United States v. NorCal Tea Party Patriots, which rejected the Internal Revenue Service's attempt to withhold documents relevant to a lawsuit that charged the I.R.S. with unfairly treating conservative groups seeking tax-exempt status. The federal law applicable in the case, Kethledge wrote, "does not entitle the IRS to keep secret (in the name of 'taxpayer privacy,' no less) every internal IRS document that reveals IRS mistreatment of a taxpayer or applicant organization." The law "was enacted to protect taxpayers from the IRS, not the IRS from taxpayers."

Kethledge has authored several notable opinions in First Amendment cases. In Lavin v. Husted (2012), he struck down an Ohio statute that made it illegal for state attorney-general and state county-prosecutor candidates to accept campaign contributions from Medicaid providers. State officials justified the law as an anti-corruption measure, arguing that it helped prevent prosecutors from turning a blind eye towards Medicaid fraud committed by doctors who offered financial support to their campaigns.

Kethledge rejected the state's position. "The statute here restricts the First Amendment rights of nearly 100,000 Medicaid providers who do not commit fraud, based on an attenuated concern about a relative handful of providers who do," he wrote. "There is no avoiding the conclusion that the contribution ban…is therefore unconstitutional."

In other First Amendment cases, however, Kethledge has been more willing to side with the government. In Big Dipper Entertainment v. City of Warren (2011), for example, Kethledge rejected a free speech challenge to a city law that banned strip clubs from the downtown area. "The speech at issue here is that conveyed by a topless bar," Kethledge wrote. "In a democracy, it is only common sense to say that 'society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political speech.'" He added: "Democracies need political debate more than they do topless bars in order to function."

Kethledge has not yet written a major Second Amendment opinion. But he did sign on to a 2016 concurring opinion that argued in favor of broader protections for the right to keep and bear arms.

That concurrence came in the matter of Tyler v. Hillsdale County Sheriff's Office. The case centered on a man named Charles Tyler. He wanted to legally purchase a gun but was barred from doing so under federal law because he had been involuntarily committed three decades earlier. Tyler maintained that the federal law was unconstitutional as applied to him because he now had a clean bill of mental health and should be able to exercise his Second Amendment rights.

Kethledge joined the concurring opinion filed in the case by Judge Jeffrey Sutton. "The government has assumed power to deny guns to those who were once institutionalized on the theory that they necessarily remain mentally ill and thus are unprotected. That is wrong," the concurrence maintained, "because institutionalization and mental illness are not ever-lasting synonyms. Just as the government may not ban protected speech by labeling it obscene, it may not deny a gun to a protected individual by labeling him mentally ill for life."

Among civil libertarians, Kethledge is perhaps best known for his 2016 decision in Carpenter v. United States, which rejected a Fourth Amendment challenge to the FBI's warrantless acquisition of cellphone location records. "Cell-site data—like mailing addresses, phone numbers, and IP addresses—are information that facilitate personal communications, rather than part of the content of those communications themselves," Kethledge wrote. "The government's collection of business records containing these data therefore is not a search."

Last month, the U.S. Supreme Court overturned Kethledge's Carpenter decision. "A person does not surrender all Fourth Amendment protection by venturing into the public sphere," declared the majority opinion of Chief Justice John Roberts. "We decline to grant the state unrestricted access to a wireless carrier's database of physical location information."

Among property rights activists, Kethledge is perhaps best known for his 2017 dissent in Wayside Church v. Van Buren County. At issue was a forfeiture and foreclosure proceeding undertaken against a Michigan church over delinquent property taxes. "In this case the defendant Van Buren County took property worth $206,000 to satisfy a $16,750 debt, and then refused to refund any of the difference," Kethledge wrote. "In some legal precincts that sort of behavior is called theft." Kethledge argued that the church had raised a legitimate just compensation claim that deserved to be heard under the Takings Clause of the 5th Amendment.

In his non-judicial writings, Kethledge has voiced support for the theory of constitutional interpretation known as originalism. In a 2017 article in the Vanderbilt Law Review, for example, he argued that judges "are bound to apply" the "meaning [of a constitutional provision] that the citizens bound by the law would have ascribed to it at the time it was approved."

In that same article, Kethledge revealed himself to be a critic of the legal doctrine known as Chevron deference, which says that when the federal courts are confronted with an "ambiguous" statute, the default response is for the courts to defer to the interpretation of that statute favored by the executive branch agency charged with enforcing it. According to Kethledge, in a typical Chevron deference case the regulatory agency "asks if there is a colorable interpretation that will support the policy result that the agency wants to reach. When judges engage in that kind of analysis, we call it judicial activism…. It is not clear to me why the result is any better when the arrogation is done by the executive."

To say the least, Judge Raymond Kethledge has left a lengthy paper trail that reveals his views on a number of hot-button legal issues. If he gets the nomination to replace Justice Kennedy, I hope the members of the Senate Judiciary Committee will question him about these important matters of law and constitutional interpretation.

Related: SCOTUS Shortlister Amy Coney Barrett on Overturning Precedent and Judicial Deference to Lawmakers