MENU

Reason.com

Free Minds & Free Markets

What Should Libertarians Fear Most from SCOTUS Pick Brett Kavanaugh?: Podcast

Jonathan Adler says he's "supremely qualified," an originalist, and a critic of the administrative state. But he's a cipher when it comes to defendants' rights.

Jonathan AdlerJonathan AdlerPresident Donald Trump's new nominee to serve on the Supreme Court, Brett Kavanaugh, is "supremely qualified" for the job, says Case Western Reserve University law professor and Volokh Conspiracy blogger Jonathan H. Adler.

In most ways, he continues, Kavanaugh is a good pick from a libertarian perspective. He's been a widely respected judge on the D.C. Circuit for a dozen years, he's an "originalist" when it comes to the Constitution (meaning he believes the text and meaning of laws when they are passed are central to their application), and he's a principled critic of the administrative state (rule by agency bureaucrats rather than by Congress).

So what's not to like if you're libertarian? Adler, who also writes for National Review, says that Kavanaugh is a cipher on issues surrounding the rights of criminal defendants. And when it comes to the procedural rights of enemy combatants, to national security measures, and to certain aspects of executive power, the 53-year-old D.C. native may be more deferential than most libertarians would want.

In a wide-ranging conversation about the shifting balance of power on the Supreme Court, confirmation-hearing hypocrisy from Democrats and Republicans, and fact-free attacks on the Federalist Society as a secretive king-making group, Adler talks about the future of abortion and same-sex marriage and the likely outcome of Kavanaugh's nomination.

Subscribe, rate, and review our podcast at iTunes. Listen at SoundCloud below:

Audio production by Ian Keyser.

Don't miss a single Reason Podcast! (Archive here.)

Subscribe at iTunes (and rate and review us while you're there!).

Subscribe to it via FeedPress.

Subscribe to it via Google Play Music.

Follow us at SoundCloud.

Subscribe at YouTube.

Like us on Facebook.

Follow us on Twitter.

Photo Credit: Eric Draper, White House, Public Domain

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • 100% Satisfaction Guaranteed||

    Most?

    The screeching about overturning Roe is at the top of my list. And not so much "fear" as "deride"

  • Jerryskids||

    Is Thurgood Marshall still the last SCOTUS member who came up from the defendants' side of the bar?

  • BestUsedCarSales||

    I think it's good to discuss the pros and cons of any candidate. No one is perfect, and we are always weighing these difficulties in an imperfect world.

    That being said, I want to get in and see if commentators call Reason cucks for talking any negatives at all.

  • sarcasmic||

    I want to get in and see if commentators call Reason cucks for talking any negatives at all.

    That's a given.

  • John||

    Juice made the best criticism I have seen of this guy on another thread. He has spent his entire life in the Washington area and working in politics and government. I have a bad feeling that he is going to be another Roberts. A guy who can often be okay but when it comes down to it and he has to deliver an opinion that is unpopular with his social circles, he will fold like a chair. I think Trump probably fucked this one up.

    Now if you will excuse me, I will be off exploring the new and exciting world of cuckoldom.

  • Zeb||

    "DC native" is kind of a red flag. But he sounds like he could be pretty good.

  • John||

    He is on the Chevy Chase Town Council. This guy is going to face total social exile if he doesn't turn out to be a Prog. Maybe he has the balls for that. But considering his background, that is a shakey bet at best.

  • Last of the Shitlords||

    I await the sort of SCOTUS Justice that has the balls to cackle evilly after a very groggy unfriendly decision while flipping off the progs in his neighborhood glaring at him derisively.

    That would be pretty Goddamned awesome.

  • Chipper Morning Baculum||

    All judges spend their entirely lives surrounded by government insiders.

  • Pro Libertate||

    Well, if the Dems fight tooth and nail against this guy, they'd better be prepared for the possibility of Justice Cruz or something like that if the GOP expands its seats in the Senate. Frankly, I think this is a mild not-loss for the left, though this guy is right of Kennedy. Best they can hope for.

  • John||

    I agree. And I think they are going to lose seats in the Senate this fall. Then sometime in the next year or two RBG is finally going to keel over and they are really going to have something to complain about then.

  • Pro Libertate||

    Do you? I was thinking the GOP might gain 2-3 seats.

  • John||

    I mean Democrats lose seats. I agree that the Republicans are going to gain at least two or three seats maybe more.

  • Just Say'n||

    Tom Woods thinks you're a cuck. And I'm obliged to agree

  • BestUsedCarSales||

    It's so strange that he thinks that, considering I fucked Tom Woods' wife and my own wife is a virgin.

  • Just Say'n||

    BUCS isn't messing around anymore

  • BestUsedCarSales||

    Being mayor of Arizona is just plumb tuckering me out.

  • Chipper Morning Baculum||

    BUCS's wife only uses the service entrance?

  • Citizen X||

    +1 technical virgin

  • Chipper Morning Baculum||

    The best kind of virgin?

  • Chipper Morning Baculum||

    I thought it was fish people from dimension M.

  • Rock Lobster||

    As long as they can use the bathroom of their choice on demand, all is right with the universe.

  • Rock Lobster||

    This also applies to the downtrodden otherkin fish people, of course.

    Fight the Cis-Mammalian Patriarchy!

  • Just Say'n||

    He's garbage on the 4th Amendment just like Kennedy was garbage on the 4th Amendment.

    How is "originalism" or "textualism" a coherent ideology if practitioners such as Scalia can be good on the 4th Amendment and the indefinite detention of Americans, while others who profess to follow the same legal thinking, like Alito, are such garbage on the same issues? I thought the whole appeal of that school of thought was that their rulings would be predictable because they're only relying on the letter of the law?

  • Just Say'n||

    New found respect for Alito

  • Zeb||

    It would be fun to see what happened if someone intelligent, but with no legal background was appointed to the court and just read the laws and the constitution and made judgements based on that. I don't know if these guys who claim to be originalists or textualists or whatever it is are full of shit, or are just too steeped in the volumes of legal opinion to actually get fully back to the text.

  • John||

    A lot of it is just confirmation bias. The original intent can be about anything you want if you go and cherry pick the right facts. That is the downside of original intent. It is very easy to find that the founders intended whatever you like.

    All of these guys need to be asked to name something about the Constitution as it was originally intended and drafted that they do not like and would change if they could. If they can't name something, then either the Virgin Mary has granted a miracle and made a perfect document or the guy reads "original intent" to mean whatever he prefers it to be.

  • Pro Libertate||

    It could happen. There are no requirements for the Supreme Court. None. So a layperson definitely could be a justice. As, I suppose, could a computer.

  • Pro Libertate||

    You know, Putin is eligible.

  • jdgalt1||

    I'd pick Andrew Napolitano any day. He has respect for federalism. I don't see any of that in Kavanaugh.

  • Harvard||

    Yeah, I always thought maybe someone intelligent and successful with no political background was elected President and make judgments based on what was good for Americans would be sweet.

  • Chipper Morning Baculum||

    Just Sayin', you raise an excellent point. That same point also applies to the NAP as a guiding philosophy and why libertarians are at each others' throats about different issues even though they all profess to follow the same principle. That is why "thickness from grounds" (referencing Charles Johnson here) is so important and why there need to be foundational principles behind the NAP, the most important of which should be individualism over collectivism.

  • Last of the Shitlords||

    But what if you happen to be a libertarian that is also a Hessian with a lot of aggression?

  • Brian||

    My God.

    We're done for.

  • Diane Reynolds (Paul.)||

  • John||

    Unless the federal courts start taking gun rights seriously, this kind of shit is only going to happen more. They can't ban guns, so they will try and make owning one virtually impossible.

  • Zeb||

    One of my biggest hopes regarding a trump administration is that the supreme court will start taking more gun cases and start really slapping down a lot of the state restrictions. I'd start with getting rid of "may issue" carry permits, but laws like that one in Seattle need to go too.

  • John||

    Mine too. Also Congress needs to pre-empt this bullshit. Gun rights are federal rights and the federal government has both the power and the duty to ensure petty tyrants in state and local governments cannot deprive people of them.

  • Just Say'n||

    Mitch McConnell, not Trump, single-handily saved gun rights in this country by holding off on voting for Garland. And delaying that vote probably won Trump the election too. That is one shrewd turtle

  • Quo Usque Tandem||

    I was hopeful that we would get a solid 5-4 majority on the court, and then see them weigh in on any number of diversity issues on the subject; however, this guy just doesn't seem all that solid. Time will tell.

  • BestUsedCarSales||

    I'm sorry Paul. But all I want is for Amazon to leave, just to see the city collapse under the weight of it's own bullshit. Like, if Amazon just moved to Kent even, something to minimize the actual people hurt. But jesus I hate Seattle politics. I used to get frustrated in Tucson, but everything I hear from Seattle just pisses me off.

    I'm finally moving though, so I really guess I don't have much stake in this now.

  • DJK||

    "The legislation will apply only to guns kept somewhere, rather than those carried by or under the control of their owners.

    Also under the legislation, it will be a civil infraction when an owner knows or should know that a minor, "at-risk person" or unauthorized user is likely to access a gun and such a person actually does access the weapon.

    The legislation allows fines up to $500 when a gun isn't locked up, up to $1,000 when a prohibited person accesses a firearm and up to $10,000 when a prohibited person uses the weapon to hurt someone or commit a crime."

  • DJK||

    As a strong 2A advocate, I don't think a single one of those penalties fails to pass 2A muster. The $500 penalty is probably unenforceable on its own - the only way this is getting levied is if there is already a 4A violation or this is found in an acceptable search, in which case the other legal problems are way more problematic. The $1,000 fine is similar. I have no problem with the $10,000 fine, provided there is a provision to avoid liability if you report the firearm stolen. A gun is a dangerous weapon with a strong chance of harming someone if put in the wrong hands. There's absolutely nothing wrong with holding a gun owner financially liable for crimes committed by people to whom they lend their weapons. We do similar things for automobiles.

  • Zeb||

    I don't want to see Roe overturned, but I'm much more worried about gun rights, freedom of speech/press and 4th amendment issues. Conservatives seem to be hit or miss on the latter. Pretty good on 1A and 2A stuff. Even if Roe is overturned, which I don't think is likely, I think abortion rights are more likely to recover than gun or speech rights. I can't think of any country where civilians have peacefully re-armed themselves after a gun ban being in effect.

  • Diane Reynolds (Paul.)||

    Except for a few states in the south that have already had legislators mucking with Abortion rights, almost every state in the union would keep abortion legal. I believe my state has a law that says if Roe is ever overturned at the federal level, it remains the law of the land here.

  • Fancylad||

    I hope they at least allow Sweden or Hollands abortion restrictions. I believe the US and Canada are a few of the only countries psychopathic enough to allow late term abortions on healthy fetuses.
    Anything past seven months and you're obviously killing someone.

  • jdgalt1||

    Late term abortions are a red herring. Nobody wants to wait that long and then have one; for one thing it will hurt a lot more than doing it early.

    Nearly all the times they happen, it's to save the mother's life from serious illnesses like liver failure, and the baby would probably not last long enough to be born alive even if the doctors refused to do the abortion. (Which hasn't stopped Mercy Hospitals from refusing anyway, and I'm surprised there haven't been successful wrongful death lawsuits by the families of the women involved.)

  • Penny_Worth||

    This is not quite true: there are at least 500 'surgical abortion ' providers in the United States. These providers will do abortions after 14 weeks and some far later. Contrary to popular opinion, most late term abortions are elective, that is, they are a choice made, not a choice under duress of a health or life issue. Sorry to burst your bubble, but late term abortions are *not * mostly done to save a mothers life. Fetal anomalies only account for about two percent of late term abortions, and the number of abortions necessary to save the mother's life is likely not much higher.

  • Penny_Worth||

    Frankly, as I see it, it would not be necessary to overturn Roe v. Wade to look at abortion in a bit of a different light. According to my reading the plain text of Roe, advances in science could affect how long one can wait before one can get an abortion. With research and advances in science pushing both viability and the knowledge of what the pre-born child experiences as pain earlier than we first thought, Roe makes allowances for restrictions based on this knowledge.

  • Calidissident||

    From what I've read he seems pretty good 1A, 2A, and economic stuff (maybe a bit differential to the executive, John might be right about the Roberts comparison), but his record on criminal justice and surveillance related issues gives me pause. Has he opined on any cases involving asset forfeiture? I'd be curious to know what his opinion on that is. I'm hoping civil asset forfeiture will be struck down as unconstitutional (as it is/should be) in the coming years, and I'm pretty confident that Thomas, Sotomayor, and Gorsuch would rule that way. I'm not either not sure or not hopeful about the rest of the justices so it's possible that Kavanaugh could cast a deciding vote in such a case.

  • Calidissident||

    *left an extra "not" in there

  • hello.||

    He isn't worth a shit on first amendment issues. But that just means he's hostile to protections for religious expression so you guys will learn to love him just like you do the entire left side of the bench. Campaign finance reform is a small price to pay for forcing Christians to endorse buttfucking.

  • Calidissident||

    Literally what?

  • Pro Libertate||

    I speak without authority on this, but I thought he is viewed as okay on 1st Amendment cases, as well as disliking Chevron deference. I'd have preferred someone more, well, libertarian, but we're not getting Janice Rogers Brown.

  • hello.||

    He also stated plainly during his 2006 confirmation hearings for the DC circuit that he would faithfully uphold Roe v. Wade and that abortion rights are a matter of settled law. Please pass this readily-available information on to Elizabeth Nolan Brown before she pens her breathlessly histrionic tirade on the topic later today. God knows that retarded cunt is far too stupid and lazy to consult a basic Google search before she opines on the topic.

  • DJK||

    The DC circuit confirmation was a different ballgame. As a lower court judge, he was bound by SCOTUS precedent. As a SCOTUS justice, he would have latitude to overturn that precedent. I'm not sure of his views on stare decisis, which is the far more relevant question at the SCOTUS level. But his statements during the DC circuit confirmation process need to be taken with a huge grain of salt, given the much wider discretion afforded to a SCOTUS justice.

  • jdgalt1||

    SCOTUS precedents are only absolutely binding on federal appeals courts for a limited time, I believe it's 6 months.

  • DJK||

    Jesus. Didn't read more than halfway through your article. Calling ENB a cunt was absolutely unnecessary. This is a fairly prominent libertarian blog seen by non-libertarians who may be sympathetic to some of our causes. You are doing the movement a massive disservice by being such an asshole. Don't claim to speak for libertarians. Thanks.

  • shane_c||

    This guy is a conservative and a partisan Republican, he's not a libertarian.

  • agen bola terpercaya||

    This is really or just a joke?
    situs judi bola

  • Penny_Worth||

    Currently, my biggest concerns with Kavanaugh relate to his record on upholding the rights enumerated in the Fourth and Fifth Amendments. I've already received several e-mails from various advocacy groups (conservative and libertarian) concerned about his record on the extent of coverage they have. Groups as diverse as the ACLU, Campaign for Liberty and The Heritage Foundation are concerned about it. I hope Rand will at least consider that peoples' words don't matter half (or less) as much as their actions, which are a far better indicator of what they will do.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online