The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

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."


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.


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