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

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

C-SPANC-SPANJudge 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

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  • Longtobefree||

    "The speech at issue here is that conveyed by a topless bar,"

    So? Speech is speech. Does it matter if the speech is Shakespeare or a free swinging pair? Art is art.

  • Salmonsnail||

    I guess it has to be bigoted anti-gay or lying to pregnant women speech to get protection from a conservative.

  • Pat_||

    I guess liberals, who always perform worse on knowledge of basic civics, don't' understand the First Amendment applies to constraints by government.

  • Jerryskids||

    This guy thinks some speech is more important than other speech. Robert Bork held to the idea that "free speech" only applied to political speech. (He also didn't believe the courts should be recognizing any rights not specifically mentioned in the Constitution.) We dodged a bullet with that malignant bastard, this one might need some serious scrutiny as well.

  • HGW xx/7||

    Agreed. I don't see how he can be called an originalist and view the freedom of speech that narrowly.

  • Pat_||

    Considering federal judges on the left are tending to assert limits even poltical speech, Bork's views were actually moderate.

  • Bob Meyer||

    Kethledge's views on the 4th Amendment are worse than allowing cities to regulate topless bars. Sullum was right, we need another Gorsuch not another run of the mill conservative.

  • Robert||

    It's a long stretch to say being topless is speech. We're just lucky that in such cases the twisting of the law has been to the benefit rather than detriment of liberty.

  • LynchPin1477||

    Yeah, it's a symptom of things like freedom of association and freedom of commerce not being explicitly mentioned, and of freedom of speech being held in (relatively) high esteem. So a lot of stuff that would be more natural to defend under free association or free commerce ends up falling back on free speech for expediency.

  • JeffreyL||

    Read the opinion. The quote above in the article is a paraphrase of a 1972 supreme court case Young v. American Mini Theatres. The quote in full from that opinion is below:

    We are not persuaded that the Detroit zoning ordinances will have a significant deterrent effect on the exhibition of films protected by the First Amendment. 61*61 As already noted, the only vagueness in the ordinances relates to the amount of sexually explicit activity that may be portrayed before the material can be said to be "characterized by an emphasis" on such matter. For most films the question will be readily answerable; to the extent that an area of doubt exists, we see no reason why the ordinances are not "readily subject to a narrowing construction by the state courts." Since there is surely a less vital interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic expression than in the free dissemination of ideas of social and political significance, and since the limited amount of uncertainty in the ordinances is easily susceptible of a narrowing construction, we think this is an inappropriate case in which to adjudicate the hypothetical claims of persons not before the Court.

    Read the full opinion and understand where the statement comes from.

  • Echo Chamber||

    "Read the full opinion and understand where the statement comes from."

    Understand the context first? Pfffttt. That is so last century

  • Jason Dawes the Elder||

    Topless dancing isn't speech.

  • Marcus Aurelius||

    When done right it leaves you speechless.

  • Flinch||

    Shakes-a-pair? Copyright that... quickly.

  • HGW xx/7||

    Take a moment, after reading this article, and imagine who Hillary would be putting up for confirmation. Let that sink in. Personally, I think the Lord Mayor of Sheffield from the article earlier today would probably be on her short list.

    Presidencies end. Excutive orders can be wiped out in an instant. However, the justices that a president appoints have a serious and long term effect. If anything, that is how I measure the legacy of a president, at least in large part.

    For all the stupid shit Trump has done, if he keeps picking district and Supreme Court judges as he has been, I will have to give the guy props. Gorsuch alone was a brilliant pick. A few more of him and we can stand a chance at upholding the constitution even in the face of...* barfy hiccup *...Madame President Harris.

  • Jerryskids||

    "Gorsuch alone was a brilliant pick."

    I'd wait about ten years to see how Gorsuch "grows in office" before applauding too vigorously there, chief.

  • HGW xx/7||

    Fair enough, but I'm hard pressed to think of a better justice from the past four presidencies from what I've seen in this early stage.

    Time will indeed tell.

  • Echo Chamber||

    Gorsuch is off to a good start.

    "Democracies need political debate more than they do topless bars in order to function."
    So far Kethledge fails the 'guy I'd like to have a beer with' test

  • The Last American Hero||

    I don't want an SC justice I'd like to have a beer with. I'd like one that is steeped in the original context with a degree of obsession only seen in fantasy football fans.

  • Flinch||

    He would have an instant problem with Ted Kennedy if he were still around, that's for sure.

  • Quo Usque Tandem||

    So another qualifier...

  • josh||

    As a matter of principle, I think Garland deserved a hearing. However, I'm much happier with Gorsuch. In politics, you take the victories you get.

  • josh||

    I like that he didn't go to an Ivy League law school. I know that's not the most important thing, but a little bit of diversity in terms of legal background (law school, non-judges, etc...) wouldn't hurt either.

  • HGW xx/7||

    You confused simpleton, that's not diversity, or at least not the kind that matters. Sure the court needs more wise Latinas, or People of Color! However, simply everyone knows that a good leftist education is required in order to be considered intelligent and build unquestionable consensus; anything else is basically racist...or something. FUCKING SCIENZ says so, you flyover yokel.

  • Pat_||

    I recall when the first Clinton Cabinet was photographed one of the CNN idiots saying something to the effect of: 'look, you can see it is clearly the most diverse cabinet ever"
    They were virtually all corporate lawyers from a narrow set of schools.

    It is funny how we can take utterly shallow things like physical appearance, gender, race as "diverse" when it doesn't occur to so many that having no one who ever had to meet a payroll, or comes from a different profession is a serious lack of diversity.

  • Harvard||

    So, he went to UM so he's definitely not as liberal as those ivy league schmucks? Arf! I went to UM. There is a number of reasons they refer to it as Harvard West.

  • Ecoli||

    Strongly agree!

  • LynchPin1477||

    Doesn't sound all that bad based on this.

  • Eddy||

    With the strippers, he had to operate within the framework of Supreme Court precedent and the proceedings in the district court. He could still have ruled for the strip club (or whatever it calls itself) - indeed, a dissenting judge did so - but he wasn't exactly plowing new ground here. The Supremes have a remarkable number of "adult entertainment" decisions to guide lower courts.

  • chemjeff radical individualist||

    "Democracies need political debate more than they do topless bars in order to function."

    Actually, democracies need fewer judges imposing their idea of what the citizens "need".

  • hello.||

    Except in the case of compulsory health insurance and taxpayer provided abortion right crypto-commie?

  • apedad||

    Judges didn't rule what people 'needed' in those cases.

    They simply said if a person wants this then it shouldn't be prohibited by the govt.

  • Flinch||

    Here we go again: its time for the litmus test of abortion applied by the left. The fact it appears decade after decade is proof the foundation of Roe v Wade is quicksand. Maybe the nominee should ask why congress hasn't done anything to remedy the apparent weakness in case law and guarantee safe access by statute? This tapdance is as tiresome as any of the kick the can games congress has ever played, and people like Feinstein need an accounting for their inaction.

  • sparkstable||

    Even if he's not perfect... form these snippets... he seems to be way better than Kennedy. So even if it's not another Gorsech or Thomas or Scalia or whoever floats your boat (oddly... if it's 4th Amendment I'm sticking with Sotamayor it seems... never saw that coming) he would still be an improvement. At the very least... he's got that going for him.

  • Flinch||

    It's going to be a long month with more info on more of the short listers. The article was a nice addition.
    So let me toss out an idea no journalist would ever posit: Trump must nominate a woman, and she must be a constructionist [and strong to the point of being unapologetic]. Why? Because of Roberts. It was something that seemed to jump out at me from the ACA decision. I could be wrong, but he needs just one woman on the court to break the leftist female consensus so he can get back to thinking again instead of reacting. That could make this nomination a two-fer effectively by rehabilitating what appeared to be a decent mind when first appointed. Until then, he is emotionally boxed in and will be a "good boy", unable to stand up against his own triggers to render his own real opinions whenever a cabal of skirts presents him with their collective opinion. The soft spoken mavens of socialism are the most difficult to fight on a long term basis, and Roberts could use some assistance.
    Is there such a candidate out there? I'm not sure, but Trump often surprises.

  • Tony||

    Sounds like a fucking idiot corporate whore.

  • Quo Usque Tandem||

    I personally find pleasure in your pain; if that makes me a sadist, oh well. It is deserved.

  • PG23COLO||

    Originalism is a joke where judges pretend to read the minds of some unknown number of people who died more than 2 centuries ago.

    It's just another formula designed to give significance to what is really an interpretation of the law based on the whims of the judge. It's a fraud.

    MIght as well just admit that the law is what comes from the pen, or out of the mouth, of the judge.

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