Ilya Shapiro makes the libertarian case for Brett Kavanaugh

The upside greatly outweighs any downside

|The Volokh Conspiracy |

Just as no major party is perfectly libertarian, neither party is likely to appoint judges who will please all libertarians. In part, this is because libertarians–like others–often judge the courts by their results, not how those results are reached. I myself do not look for a libertarian judge. Instead, I look for a judge who (a) will seek to follow the original meaning of the text of the Constitution, (b) has the intestinal fortitude to invalidate the acts of the majoritarian branches, (c) understands that judges are agents of the people, to whom they owe a duty to hold the other branches within their constitutional powers. (And to my mind this includes recognizing that the original meaning of the "due process of law" includes providing a judicial forum in which to contest whether a legislature has exceeded its just powers in a constitutional republic where first comes the rights of We the People, and then comes government "to secure these rights.")

As I explain in Restoring the Lost Constitution, what matters for constitutional legitimacy is that a constitution establishes a law-making process by which laws imposed on the people are likely to be necessary and proper. A judicial branch that holds legislatures to the letter and spirit of the text of the Constitution will yield more "libertarian" results than "the constitution" now given us by the Supreme Court. So I just want judges who will consider such originalist arguments in good faith. That requires them to put interpretive "method" over their own political preferences, which I admit is very hard for everyone to do–myself included.

Is Brett Kavanaugh such a nominee? Some libertarians have been skeptical of this, and I have been spending a bit of time bringing myself up to speed on his record. There are a few sour notes–two in particular–but on balance, his record is strong. He is pretty ardently committed to textualism–more on this below–and the separation of powers. And he is skeptical about judicial deference to administrative agencies. He has a superb Second Amendment opinion in Heller 2 in which he rejects the tiers of scrutiny approach that many circuits have been using to gut the Supreme Court's decisions in Heller and McDonald. These are not just good, they are very good.

Now comes Cato's Ilya Shapiro to make The Libertarian Case For Brett Kavanaugh's Supreme Court Nomination. And it is a strong one. Here are some excepts.

In a 2009 law review article, he wrote that "constitutional text makes clear that the President does not enjoy unilateral authority with respect to all incidents of war. The Constitution gives the Congress not only the power to declare war . . . but also the power to raise armies, to fund wars and armies, and to regulate captures, among other powers."

Accordingly, Kavanaugh has both rejected executive supremacy in favor of judicial review and praised Justice Antonin Scalia's dissent in Hamdi v. Rumsfeld (2004), which argued that the military can't detain U.S. citizens absent a congressional suspension of habeas corpus. Simply put, Kavanaugh takes an originalist and textualist approach to the powers asserted and statutes at issue, rather than blindly deferring to the executive as many judges might.

Kavanaugh has also made some important Fourth Amendment rulings: "Most notably, in Jones v. United States (2010), he explained in dissent that the Fourth Amendment protects property and privacy interests in the context of the government's physical intrusion on a defendant's car to install a GPS device. Kavanaugh's reasoning was vindicated two years later when Justice Scalia adopted his approach for a Supreme Court majority."

Kavanaugh is a fan of Justice Scalia's that most acknowledge to have been solicitous of defendant's rights. For example, he "lauded Scalia's role as the court's 'most tireless advocate for the right to trial by jury [under the Sixth Amendment].'" In his own right,

"in United States v. Moore (2011), Kavanaugh found that a criminal defendant's Confrontation Clause rights had been violated when the government introduced Drug Enforcement Agency reports at trial without allowing the defendant to confront the report's author. In United States v. Nwoye (2016), he reversed the denial of a defendant's ineffective-assistance-of-counsel claim in a case where her lawyer had failed to present expert testimony on battered-woman syndrome.

I have been very impressed with Kavanaugh's concern in his rulings for mens rea requirements and his skepticism of strict liability crimes–an important but underappreciated issue. So is Ilya:

Kavanaugh has also been a leading advocate of interpreting statutes to incorporate robust mens rea requirements, protecting individuals from criminal sanction unless the government establishes a "guilty mind." See for example his dissent in United States v. Burwell (2012), in which he argued that a defendant could not face a mandatory 30-year sentence for carrying a machine gun during a crime because the government had not proven that he knew the weapon to be a machine gun. Or his concurrence in United States v. Williams (2016), where he commended a majority opinion that reversed the conviction of a gang member involved in a hazing ritual "to underscore the critical importance of accurate instructions to the jury on mens rea requirements."

So too in white-collar cases, where regulatory "crimes" have ballooned in recent years. In Lorenzo v. SEC (2017), Kavanaugh dissented from a decision upholding the Securities and Exchange Commission's broad theory of liability in enforcing fraud laws against a broker who transmitted a fraudulent statement dictated by his boss. Last month, the Supreme Court agreed to review the case (although of course Kavanaugh will be recused from it if he is confirmed).

So what's not to like? First and foremost is an opinion in "Klayman v. Obama, where the U.S. Court of Appeals for the DC Circuit rejected on standing grounds a 2015 challenge to the National Security Agency's telephony-metadata collection. Kavanaugh wrote separately to say the program passed constitutional muster regardless. . . . Kavanaugh wrote that the NSA's suspicion-less collection of metadata is 'entirely consistent' with the Fourth Amendment and 'fits comfortably within the Supreme Court precedents applying the special needs doctrine.' (The 'special needs' doctrine relates to government actions beyond normal law enforcement practice, such as at borders or drunk-driving roadblocks.)." Klayman is indeed a bad opinion that has given me great pause. But it is just one. And, as Ilya notes, "this was a two-page opinion as part of an emergency appeal," one that was likely written in a 24-hour time frame. The offending passage consists of a couple (very bad) sentences.

More importantly, it is a decision "that has likely been superseded by Carpenter v. United States, where the Supreme Court this past term ruled that police need a warrant to access cellphone location data." Ilya notes a recent piece by Sharon Bradford Franklin on Carpenter and the End of Bulk Surveillance of Americans. Franklin served as executive director of the Privacy and Civil Liberties Oversight Board, an independent federal agency that reviews counterterrorism programs to ensure that they include appropriate safeguards for privacy and civil liberties. (And she happens to be a law school classmate and friend of Brett Kavanaugh's.) As she reads Carpenter,

it provides a clear answer to the constitutionality question: Under Carpenter, the third-party doctrine does not extend to the type of collection conducted under the former Section 215 program, and that program would violate the Fourth Amendment. The bulk collection of call detail records, which show over time who calls whom and when, exposing intimate personal details and patterns of association, creates the same privacy risks as the cell site location information that is protected by the Fourth Amendment under Carpenter. . . .

Further, Carpenter puts to rest a second aspect of the third-party doctrine, namely the bright-line distinction between the contents of communications and metadata. . . . Cell site location information, like telephone calling records, is a type of metadata. Although it did not explicitly say so, the Carpenter court recognized that metadata at scale implicates protected privacy interests, noting that CSLI provides "a detailed chronicle of a person's physical presence compiled every day, every moment, over several years."

I am hopeful that, when he is a justice, Brett Kavanaugh will see things the same way, notwithstanding the sentence or two he wrote to the contrary in Klayman. At any rate, this is a matter that should be explored in his nomination hearing.

My final–and bigger–concern has been Kavanaugh's reluctance to use the label "originalist" to describe himself. This goes to criterion (a) above. Nonoriginalists like Eric Posner have also noticed this (see Is Brett Kavanaugh an Originalist?). On the other hand, he has not only written originalist opinions–for example in Heller 2–but his description of his own approach, which he has called "constitutional textualism" is indistinguishable from originalism. Indeed, the approach he has described is original public meaning originalism–(the very best kind of originalism!).

I can appreciate why he might have avoided the label "originalism" before the label became cool. Once upon a time, I avoided the label "libertarian" in favor of "classical liberal," which I soon came to regret as a mistake. What will matter a great deal to me is that he affirms at his hearings–readily and without apology–that he is a public meaning originalist. And, having investigated his record since his nomination, I am now confident that he will.

Unlike every other Republican Supreme Court nominee after Robert Bork and before Neil Gorsuch, Brett Kavanaugh has a record of commitment as a judge and lecturer to originalism in substance if not in name. I have no doubt that, when he publicly uses the label "originalism," he will have a better idea than most of what that label stands for. They say nomination hearings are meaningless rituals, and I tend to agree. But such a public affirmation that he is an originalist will be highly meaningful.

Ilya concludes:

In sum, libertarians aren't going to agree with Kavanaugh on everything—we don't agree on everything ourselves!—but he's a big step forward for constitutional liberty. An exhaustive treatment of his record is beyond the scope of this essay, but suffice it to say that while questions about the Fourth Amendment, privacy, and criminal justice may be worth pursuing at his confirmation hearings, they're no reason to oppose his nomination.

This is pretty much where I am as well. The more I have studied Brett Kavanaugh's record, the more I have warmed to this pick. Having three committed original public meaning originalists on the Court–a majority of the conservative majority–promises to transform the practice of law at the Supreme Court and create a ripple effect in inferior courts. This, in turn, may even lead law schools to accept they they have a responsibility to teach originalism to their students.

Stranger things have happened.

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  1. Popehat’s Ken White wrote a post suggesting he’s pretty good on 1A, too. So that’s nice.

  2. As a non-lawyer, one thing (out of many) I’ve always appreciated about this blog since its inception was how well, and clearly, Eugene was able to articulate both his legal opinion (given his interpretation of what the law IS) and his policy preferences, so that the reader was able to learn both without confusing the two.

    I believe Ilya (and others) often do a good job of it as well. Ilys especially did an excellent job with this on the topic of legalizing gay marriage, and even went one step FURTHER: he tried to think up a legitimate legal opinion that would RESULT in his policy preferences… and succeeded! (In my humble, non-lawyer opinion, even though Ilya’s approach wasn’t utilized to bring about our preferred outcome).

    But I might be misunderstanding him here; or maybe not.

    ILYA: are you saying; that you’d PREFER him to ALWAYS vote on the side of legitimacy?

    For example, I don’t know your LEGAL opinion on R v W, but let’s pretend for a sec that you found the court’s ruling to be completely illegitimate… but like the result.

    Would you WANT him to vote to overturn it?

    I know this really doesn’t matter, but I’m curious.

    1. This post is by randy Barnett, quoting Ilya Shapiro, not somin.

  3. I’ve come to the conclusion that the best reason to appoint Judge Kavanaugh to SCOTUS is that it will piss off the Democrats.

  4. Can someone help me understand how an originalist can get from the text of the 4th amendment to gov’t collection of cell phone metadata or cell tower location records being unconstitutional? Or, for that matter, from the text to a protection of an “expectation of privacy” per the Katz decision?

    1. Can someone help me understand how an originalist can get from the text of the 4th amendment to gov’t collection of cell phone metadata or cell tower location records being unconstitutional? Or, for that matter, from the text to a protection of an “expectation of privacy” per the Katz decision?

      Yes. Someone can.

      There was a lot of discussion here and elsewhere of these issues, not to mention that the actual opinions are readily available.

      Start there.

      1. Thanks, but for what it’s worth, chances are good (not certain) that I’ve read the actual opinions. And, I have no idea of what search terms would bring up the discussions relevant to my inquiry.

        To restate: some (not all) originalists claim that the 4th Amendment prevents government collection of cell carrier metadata and/or tower-based location data. I don’t see how this can be based on anything other than a Katz-like abstraction of the 4th Amendment to prevent incursions on “expectations of privacy” regardless whether they are incursions on the “persons, houses, papers, and effects” of the aggrieved. But I don’t see how such an abstraction is consistent with original-public-meaning originalism.

        (I am personally against gov’t warrantless collection of the data in question. But in my current state of ignorance it seems to me that it must be prevented by Congress, not by the Constitution.)

        1. As I recall, Orin Kerr blogged about the case. He knows a thing two about the 4th Amendment, so maybe you could look up those posts.

  5. Okay, Professor Barnett has convinced me. I do not want Judge Kavanaugh on SCOTUS. And by the way, originalism as a label still isn’t cool.

    1. How can you say that about a nominee who was chosen after the most extensive, careful, thorough, thoughtful search in the history of the universe?

  6. ” this is because libertarians–like others–often judge the courts by their results, not how those results are reached.”

    Congratulations: You just validated the attack every living constitutionalist makes against every originalist: That we’re living constitutionalists, too.

    No, actually I DO judge them by how they arrive at their results. A judge who arrives at results you like by dodgy means in one case, is liable to arrive at results you hate in another case by equally dodgy means. And even if he doesn’t, is eroding the rule of law, which is an important restraint on government.

    The Constitution isn’t perfect, but it’s not remotely so bad that we should want judges who will violate it. Even on our own behalf.

  7. Given the amount of disagreement and squabbles among the drafters, then even more so the various state ratification processes, it is really hard to buy originalism claims.

    The Founders themselves had interpretative differences on what the words meant at the time. So how can one claim to be true to the Founders intent (or original meaning) in the face of such ambiguity?

    1. The problem is that when ambiguity is used as an excuse not to be bound by text, suddenly everything becomes “ambiguous”. I think we can be reasonably confident that, for instance, the range of ‘ambiguity’ concerning the interstate commerce clause did not reach as far as Wickard v. Filburn. Or that the N&P clause did not grant Congress a general police power.

      Living constitutionalists don’t reject Originalism because it’s radically indeterminate. They reject it because you can, in fact, clearly settle a lot of questions where they don’t like the answer.

      1. The problem is that it is not an “excuse not to be bound by the text” but a matter of you disagreeing on what the text means. Thus, you provide a narrower version of the Emoluments Clause or the religious clauses of the First Amendment or the Equal Protection Clause, which the government is “bound” by, but I don’t think you are using it as an “excuse.” I think you are wrong.

        Being wrong and making shit up isn’t the same thing. I know when it seems so obvious that the other side seems not just wrong but a liar. But, we always had strong disagreements with one side thinking the other is deluded, which is not the same as being a liar. Madison and Hamilton etc.

        Those who disagree with originalism reject it for a variety of reasons. It being indeterminate is a reason, particularly since a major claim is its restraining qualities. This was not shown to be true in the decades of modern usage. Other views “clearly settle a lot of questions” too. You don’t agree with how they do it. I personally am wary about “clearly” since the Constitution from the very beginning had various shades of gray. A range of questions were left to experience and are a matter of judgment.

        But, there are various questions fairly “clearly” provided.

      2. I think we can be reasonably confident that, for instance, the range of ‘ambiguity’ concerning the interstate commerce clause did not reach as far as Wickard v. Filburn.

        No. Actually, we can’t be “reasonably confident” of that at all. How could we be?

        While the Constitution clearly authorizes government involvement in interstate agricultural markets, it is far from clear what the limits of that authority are. Nor does “original public meaning” help.

        That’s because, as is often the case, the question under consideration was not one that the framers would have anticipated or thought about. Any argument that is based on what the framers “would have thought” is nonsense.

        That’s not to say there is no room for debate over the issue, just that that particular claim has no merit.

  8. I hear ya. I guess my skeptical side sees judges who are originalist/textualist/federalist when that supports their desired outcome … and will use other rationale(s) when it doesn’t. I acknowledge that this effect is in full force on both sides of the ideological spectrum.

    1. Why does your skeptical side see it that way?
      Do you have another side that also reads opinions?
      Do you think e.g., that Scalia’s 1st and 4th amendment decisions reflected his political preferences?; or that Roberts thought Obamacare was a swell solution to the problem of health insurance?

      1. Personally, I think that Roberts thought upholding Obamacare was a swell solution to the problem of not losing his adopted kids.

        1. While I believe that Obama, who spied on candidate Trump and sicced the IRS on his opponents, is perfectly capable of such things, I’ve yet to see some sort of proof on that.

          Got a link to a good think piece with some evidence, and I ask with all sincerity, despite actual proof furthering along my general misanthropy.

          1. Eh, I just find it a more plausible explanation for his change of heart than the supposed legal reasoning he gave.

            1. I just think he didn’t want to go down in history as some sort of Chief Justice Taney-like boogie-man to the Left who undid a law passed by a popularly elected president. The Atlantic/HuffPo/Esquire pieces almost write themselves in this case.

              What’s always put that record scratch sound on the movie sound track here for me on this issue, is that at the time, there was *wink* *wink* *nudge* *nudge* public statements from senior Democrat politicans, notably Nancy Pelosi, that Roberts would come around to see their side on this issue and vote to uphold it….their only evidence being that some mentor to Roberts had done the same thing. Robert’s may have won out in end the long game he plays, though, with the saving construction that he used.

            2. IOW, you made it up. Like pretty much everything else you believe to be true.

  9. Right-wing law professor endorses right-wing judicial nominee.

    With the usual ‘I’m not a right-winger’ masquerade.

  10. Right-wing law professor endorses right-wing judicial nominee.

    With the usual ‘I’m not a right-winger’ masquerade.

    1. And yet you endorse leftists who hate the Constitution, and America.

  11. Constitutional libertarians do NOT judge decisions by their results.

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