The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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.