Justice Kavanaugh asks his former clerk, Assistant SG Rebecca Taibleson, if Justice Scalia, her other former boss, was correct about originalism.

The only answer to that question is "Yes, the boss was right."

|The Volokh Conspiracy |

Today the Court heard oral argument in Torres v. Madrid (the subject of the Harlan Institute Virtual Supreme Court competition this year). This case presents the question whether there is a "seizure" for purposes of the Fourth Amendment if the police shoot a fleeing suspect, but the bullets do not stop her. The Court allowed the United States to participate as amicus curiae. Rebecca Taibleson, an Assistant to the Solicitor General, presented oral arguments.

There was one exchange that was special. Taibleson clerked for then-Judge Kavanaugh and for Justice Scalia. And Justice Kavanaugh asked his former clerk one question: was Justice Scalia correct about the original understanding of the Fourth Amendment? The answer has to be, "Yes, the boss was right?"

JUSTICE KAVANAUGH: Thank you, Chief Justice. And good morning, Ms. Taibleson. On your brief in Hodari D., the solicitor general's brief said that the historical evidence defined the term "seizure" as requiring actual control over the person or thing seized. And the brief said, as a matter of original understanding, one could not be arrested or seized until he was in the physical custody of the seizer and within his control. The Court in Hodari D., as you point out, did not adopt that position. But was the Court wrong about the original understanding? In other words, who's correct about the original understanding: the solicitor general's brief or Justice Scalia's opinion for the Court?

MS. TAIBLESON: Well, Your Honor, our brief in Hodari D., to support that rule, cited many common law sources involving the seizure of goods, such as ships, in which the seizure was consummated with control over the item. And what Hodari D. said was that that is not quite the right source of law to look to in analyzing the seizure of a person, which is the arrest. And it's true that even in our Hodari D. brief, we cited some sources indicating that an arrest could be complete at the point of mere touching. So, at this point, we –we take Justice Scalia's opinion in Hodari D. at its word, and –and we're not asking the Court to revisit the original meaning of a seizure under the Fourth Amendment.

JUSTICE KAVANAUGH: I just want to make sure. Are you saying Justice Scalia was -it's not only precedent, but Justice Scalia was right, or are you not saying that?

MS. TAIBLESON: I'm saying I –I think Justice Scalia drew a distinction between the common law sources that is accurate and -and that you could even potentially see in our Hodari brief if you –if you blink. So, yes, I think he was right.

JUSTICE KAVANAUGH: Thank you.

I'm sure Justice Kavanaugh was smiling during this exchange. And somewhere else, Justice Scalia was smiling.

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  1. ” The answer has to be, “Yes, the boss was right?” ”

    Why? Despite the efforts to deify former Justice Scalia among right-wingers, his positions seem destined to be losers over time in America. He was an accomplished lawyer and a prominent culture warrior but he fought for the wrong, losing side.

    1. Seems that the Court will be 6-3 soon. And easily 8-1 in Trump’s 2nd term. You lost.

      1. I lost? Guys like me have been imposing progress on guys like you for so long as we have been alive. The liberal-libertarian mainstream has been shaping our national progress against your wishes and efforts and will continue to do so.

        You get to whimper and whine, stutter and mutter, rail and flail about it all you wish . . . but you will comply with the preferences of your betters, clinger.

        #13Justices
        #106Senators
        #635Representatives
        #738ElectoralCollegeVotes
        #100NewFederalJudgeships
        #NoFilibuster
        #ThreeWeeks
        #ThreeMonths
        #TheReckoning
        #OpenWiderClingers

        1. And a Second Civil War that well could kill 2/3 of our population.

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        2. You know Arthur, your hashtags are pretty humorous. None of them are actually objectively true. They are your aspirational fantasy. But let me help you with some objectively true things.

          #2soontobe3SCOTUSjustices (33% of SCOTUS justices)
          #53CircuitCourtjudges (30% of circuit court judges)
          #161DistrictCourtjudges (24% of district court judges)
          #33moreDistrictCourtjudgesondeck (bringing total to 29%)

          I won’t bore you with Article I or Article IV judges, but there are plenty of them, too.

          In 17 days, this will be resolved the old-fashioned way: The Ballot Box.

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          2. Even if the hayseeds pull out another longshot win — you’re down to 1-in-8 for president, 1-in-4 for Senate, 1-in-50 for the House — the most you will do is delay for a few years the inevitable, inexorable movement toward liberal-libertarian progress in the United States.

            Your ideas are stale and ugly, rejected — quite rightly — by most Americans. School prayer, gay-bashing, misogyny, unrestrained pollution, creationism . . . never coming back, losers. Rural states, unskilled jobs, backwater communities, hayseed economies . . . never coming back, clingers. White nationalism, Christian privilege, “conservative values,” old-timey intolerance, abusive and race-targeting policing . . . never coming back, Trumpers. Voter suppression, structural amplification of yahoo votes, GOP gerrymandering . . . on the way out, Republicans.

            More likely, the reckoning will begin in early 2021. America’s betters will remove the tiny, clinger fingers from the levers of national power and resume shaping our national progress against the stale preferences and ugly efforts of conservatives and Republicans.

            Enjoy the last gasp of your last gasp.

            1. I can’t decide which is weirder: your breathtakingly tendentious rhetoric, or your arthritic and fastidious prose style.

            2. The facts are pretty simple. When team blue has full control they either go way too far in their authoritarianism, like Clinton, and their full control only lasts two years with a sweeping shift the other way or they really don’t get what they want when they want it, like Obama, and switch to authoritarian executive actions.

              Knowing Biden and Harris, they’ll try to blend both and while packing the court and six months in will be looking at approval ratings so bad that they’ll actually envy Trump’s lowest points.

            3. RALK @ 6:20 pm

              What qualifies as a rural state in your mind?

              What’s a “hayseed economy”? Examples?

              What’s sad is that despite your efforts to list the improvements soon to come to the US, you still harbor bigotry against women who don’t see the world your way.

              You need to get that taken care of and there’s another three letters which could help you – LSW.

            4. Your disdain for your fellow citizens is sickening

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    2. You could astound everybody here and shut down comments for five minutes if you just once showed comprehension of the existence of a sense of humor.

      1. Even if not your own.

        1. You figure Prof. Blackman’s incessant fawning over right-wing judges and justices is just for laughs? How about the silly pokes at judges and justices who stray from the clingerverse orthodoxy — what that Blue June and The Real Chief nonsense just a joke, too?

          1. We were not sure you could do it, but you demonstrated a second mode of thinking. Beyond baseless, off-topic, hyper-partisan forecasts of electoral doom, you can also express yourself in whataboutism. Congratulations, I guess?

    3. Scalia’s 4th amendment jurisprudence is actually more “liberal-libertarian” than even Justice Steven’s.

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  2. Yet another example of the weird framing you sometimes end up with in US constitutional law. Who cares whether it’s a seizure? The police shouldn’t be shooting at someone without a good reason, whether you call that “probable cause” or something else.

    1. Well, I mean, you are protected against search and seziure by the constitution. That’s it. So its weird, yeah, but it does matter.

      That’s not very specific, and you certainly have laws that are more specific, but then you are at the mercy of the legislature.

  3. It is obvious that as a matter of original understanding Scalia was right about the issue of whether such an action here is a “seizure.”

    I don’t understand what Gorsuch and Thomas were talking about … they tried to say, oh it is not a seizure if its a projectile or its not a seizure because “insert weird hypothetical the framers didn’t account for here” which … is not how originalism works. Originalism talks about how the clause was understood, not “this never happened before so it can’t happen now!” which seems prevalent.

    It is like saying no one was seized named Mary in 1800 so therefore the seizure clause does not apply. That’s nonsense. They were twisting it to allow the cops in this case to win. And so what if there are other avenues to get a remedy? This is the one being pursued.

    Kavanaugh’s question was on point.

    1. Um, you understand that there has been no opinion written in the case, so talking about what Gorsuch or Thomas were trying to “allow” the cops to do is just made up, right?

      Please — everyone — stop attacking judges because of questions they ask at oral argument.

      1. He’s begging you. On his knees. With a boot in his mouth. Please!

  4. If Barry Sanders bounced off an attempted tackler at the 10 and scored, would it be said that he had been seized at the 10? On the other hand, if a tackler wrapped him up at the 10 but he broke free and scored, might it be said that he had been seized–though not downed–at the 10? If the police “wrap up” someone but they break free and escape, but there was no cause for the wrapping up, have they not been seized and would thus have a claim under the Fourth Amendment? If shot at in an attempt to be wrapped up/subdued, but they never are, but make their escape, can it be said they were ever seized? But if the use of force was not justified, is there not a cause of action for the injury other than one brought under the Fourth Amendment?

    1. The cause of action would rely on federal law or state law. Federal law in this case didn’t help, it was outside their jurisdiction and even if it was inside it would likely have been precluded by qualified immunity.

      Under new Mexico state law, absolutely, there is a clear cause of action … or there would be, but unfortunately it was precluded by statute of limitations in this case. At least that was my impression … I didn’t know there was such a statute on shooting people, but there you go.

      Grabbing someone is clear seizure. Shooting someone, it is greyer, but not very much so.

      1. Killing someone would be a seizure, wouldn’t it?
        And in the 1600’s, those bullet wounds would have been lethal.
        QED…..

        1. Isn’t Halt, or I’ll shoot! at least an attempt to sieze/arrest someone? I know that, often, the fired shots precede the command to surrender, but how does the constable’s incompetence in effecting the arrest turn it into a not-seizure? IANAL, but we layfolk read this blog, too.

    2. If a ball bearing ran out of oil and seized, would you think that an even more off-target analogy?

      Words have different meanings in different contexts, especially legal.

    3. Or consider epilepsy. Are those seizures at all related to the 4th Amendment seizures?

      I bet there are other unrelated meanings.

      1. That’s called equivocating, aka lying.

    4. That run against the Cowboys in the ‘91 playoffs…

  5. The great thing about Originalist precedents is that they are essentially meaningless under an Originalist view of precedent. It is the Constitution that judge’s vow to uphold, not prior decisions interpreting the Constitution. An Originalist opinion interpreting the Constitution as it was originally understood, is nothing more than a precedent written by a contemporary, and as such can be easily discarded by a subsequent Originalist who decides that the Constitution had a different original meaning. This works out nicely in a situation where a prior Originalist opinion, which was crafted to justify preventing the exclusionary rule from applying, might now be used to justify a “liberal” outcome. A faithful Originalist in today’s case can just toss aside the prior Originalist decision (or, more likely, distinguish it) and claim to provide a true interpretation of the Constitution (ensuring the “conservative” outcome). In a future case, the process can repeat itself, with every judge claiming to be an Originalist. Talk about an objective, value-free, method of interpretation!

    The entire judicial philosophy includes the very germ that undermines any opinion employing the judicial philosophy.

    1. It is worth noting two general critiques of originalism which get less attention than they should.

      First, the very method orginalists settled on to escape reliance on actual history—resort to original public meaning, as opposed to the framers’ intentions—is itself notably anti-originalist. Among the framers were prominent ones—Washington, Adams, Madison, Hamilton, and James Wilson come readily to mind—who exemplified reliance on personal authority as an important aspect of governance. Accordingly, Federalist articles by Madison and Hamilton are full of remarks which evoke as essential a quality of ethos among political leaders. Nor were Madison and Hamilton shy about asserting superiority for elite judgment when it came to evaluating personal ethos among candidates for government offices. The Federalist Papers are full of that.

      It was, after all, a more authoritarian nation at the time of the framing. Leaders such as the founders uncritically expected their own carefully enunciated intentions for policy—not some mish-mash of interpretations from the hoi polloi—to control government actions.

      It is impossible to imagine Washington, for instance, acceding to any notion that the correct way to interpret the Constitution would prioritize ahead of the framers’ specific intentions some dictionary search for generally applicable meanings. Yet that is what would-be originalists now insist is the right method to interpret historical documents those very leaders authored. That insistence strays far enough from any valid, “original understanding,” of the customs and practices of the founding era to be regarded as peculiar.

      Second, consider the paradox originalists create when they describe originalism as a means to constrain judicial activism. Really? What about precedent and stare decisis? Aren’t those, unless ignored, a powerful constraint on judicial activism?

      But originalism, whether weakly or strongly, disparages precedent. In practice, originalists like Scalia showed the world the uses of originalism to ignore unwanted precedents, or vault over them, on the way to preferred outcomes. That is the opposite of judicial constraint.

      Outcomes from the practice of orginalism already too much contradict its advocates’ justifications for it. It is time to ask whether the advocates have been forthright.

      1. What makes purposivism better?

        1. No dead hand, for one.

          1. Originalism — still younger, less popular, and less principled than Kim Kardashian.

            1. The authors of The Federalist Papers were answering the objections raised in articles written by the anti-ratification partisans. If one wants to treat TFP as “legislative history,” then one also has to include what have come to be known as the Anti-Federalist Papers. The entire debate, not just the views of the winning side should be salient.

              1. kevrob, do you suppose the Anti-Federalists were more committed, or less committed, to elitist thinking than were the Federalists? I think it’s the former. The notion of the Anti-Federalists as champions of individual rights must always give way to the understanding that even more than the Federalists, the Anti-Federalists were authoritarian champions of a ruthlessly class-based society. The Anti-Federalists were kind of the opposite of egalitarians.

        2. Deontologist — Given that originalism has been wielded expressly to escape constraint by precedent and stare decisis—as with Scalia and Heller, and soon, no doubt with regard to Barrett and Roe v. Wade—I suggest lack of constraint is what makes originalism worse. The last thing originalists want is constraint. They have far too many precedents to overturn, and they are in a hurry.

  6. Clerks are bootlicks. That’s how they got to be clerks in the first place and they never have a reason to change.

  7. RE: “This case presents the question whether there is a “seizure” for purposes of the Fourth Amendment if the police shoot a fleeing suspect, but the bullets do not stop her. ”

    I’d say yes, that could probably cause her to have a seizure.

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  9. Kavanaugh had earlier asked a question about the government’s position that a seizure only occurs if freedom of movement was terminated. I might have offered a backup position that freedom of movement was in fact effectively terminated in this case. By being shot in the back and having to go to the hospital, the plaintiff was not free to reach her originally intended destination. It’s not the slightest touch position the plaintiff wants the Court to adopt, but it would let this and other plaintiffs injured by arrest attempts have a day in court.

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  11. Kudos to kavanaugh for stepping back and giving women a space to speak

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