The Volokh Conspiracy

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

Making Sense of Justice Kavanaugh's vote in Torres v. Madrid

Justice Kavanaugh joined the Chief, once again.


On Thursday, the Court decided Torres v. Madrid by a 5-3 vote. Chief Justice Robert wrote the majority opinion, which was joined by Justices Breyer, Sotomayor, Kagan, and Kavanaugh. Justice Gorsuch wrote the dissent, which was joined by Justices Thomas and Alito. (Justice Barrett did not participate). Co-blogger Orin Kerr wrote a helpful post that explains the current state of Fourth Amendment doctrine. Here, I'd like to use this case to illustrate fractures on the Roberts Court.

I think we can safely presume that Justice Kavanaugh cast the tie-breaking vote. Had he agreed with Justice Gorsuch, the case would have split 4-4, affirming the lower court without setting a precedent. But the timing of this case does not suggest that Kavanaugh labored over which side to pick. Torres was argued on October 14, a few weeks before Justice Barrett joined the Court. And the case was decided on March 25. That five-month span was a pretty quick turnaround for a sophisticated, and sharply divided CrimPro case–especially with so many barbs flying between the majority and the dissent. If Kavanaugh had been on the fence, there would be some artifacts of that vacillation. For example, the opinion would have taken much longer to publish. I'd expect a handdown in May or June, rather than in March. There would be far more footnotes with caveats and distinctions, as a way to water down the majority. And so on. But from my read, the vote at conference was 5-3, and it stuck that way.

I think this join is emblematic of the close bond between Chief Justice Roberts and Justice Kavanaugh. In April 2019, Richard Wolf wrote a provocative article in USA Today, titled "Conservatives' takeover of Supreme Court stalled by John Roberts-Brett Kavanaugh bromance." At the time, Kavanaugh surrogates were not happy with the "bromance" comparison. I wasn't surprised. In the wake of the Kennedy retirement, I consistently told reporters that I expected Kavanaugh to fall closest to Roberts in temperament and jurisprudence.

Over the past two years, the bromance has budded. In OT 2018, Roberts and Kavanaugh were in full agreement 78% of the time, and agreed in full or part 89% of the time. In OT 2019, Roberts and Kavanaugh fully agreed 88% of the time, and agreed in full or part 92% of the time. For OT 2019, the runner-up doublet was Justice Breyer and Justice Kagan, who agreed 82% of the time. By contrast, Justices Thomas and Gorsuch agreed only 52% of the time. And Roberts and Thomas agreed only 41% of the time. So far this term, the trend continues. On Thursday, Roberts and Kavanaugh were wingmen with the Kagan-three in two sharply divided cases: Torres and Ford.

I've long said that the only way to have a consistent five-member conservative majority is with seven Republican-appointed justices. Six will not be enough. For the foreseeable future, Roberts will need Kavanaugh to make a five member voting bloc. Stated differently, unless Gorsuch can persuade Kavanaugh, then Kavanaugh will stick with the Chief. And, we know all too well, that Gorsuch makes no effort to bring people to his side. He throws bombs and rejects any efforts of moderation. In Torres, Gorsuch charged the majority with virtue signaling:

If efficiency cannot explain today's decision, what's left? Maybe it is an impulse that individuals like Ms. Torres should be able to sue for damages. Sometimes police shootings are justified, but other times they cry out for a remedy. The majority seems to give voice to this sentiment when it disparages the traditional possession rule as "artificial" and promotes its alternative as more sensitive to "personal security" and "new" policing realities.

Indeed, Kavanaugh will join the Chief, even where originalism is at play. And those joins are troubling. Kavanaugh talks the originalist talk, but has not convinced me he will walk the walk. Consider this passage in Torres:

As noted, our precedent protects "that degree of privacy against government that existed when the Fourth Amendment was adopted," Kyllo v. United States, 533 U. S. 27, 34 (2001)—a protection that extends to "[s]ubtler and more far-reaching means of invading privacy" adopted only later, Olmstead v. United States, 277 U. S. 438, 473 (1928) (Brandeis, J., dissenting). There is nothing subtle about a bullet, but the Fourth Amendment preserves personal security with respect to methods of apprehension old and new.

The Chief cites Scalia, but follows Brandeis. Scalia's opinion in Jones sought to bring back Olmstead and the trespass theory. And Kavanaugh tagged along for the ride. Talk the talk, but won't walk the walk.

Gorsuch returned fire with force:

But tasked only with applying the Constitution's terms, we have no authority to posit penumbras of "privacy" and"personal security" and devise whatever rules we think might best serve the Amendment's "essence."

During Justice Kavanaugh's confirmation hearing, he hedged about whether he was an originalist. Gorsuch accepted the label without hesitation. As did Barrett. And since Kavanaugh has joined the Court, he has consistently declined to join Justices Thomas and Gorsuch's separate writings that challenge longstanding doctrine on originalist ground. Kavanaugh have shown some originalist flashes of light with respect to the administrative state and the Second Amendment. But I agree with Mike Rappaport: "Justice Kavanaugh's originalism is by no means proven."

From my vantage point, Kavanaugh is more of an institutionalist than an originalist. Consider his line of questioning in Cedar Point Nursery v. Hassid. Kavanaugh was not really concerned about what types of property rights existed at common law–the type of inquiry Justice Scalia flagged in Lucas. Rather, he was fixated on NLRB v. Babcock & Wilcox Co. (1956). This Warren Court decision by Justice Reed was in no sense an originalist decision. The case didn't even concern the Takings Clause. Yet Kavanaugh saw Babcock as a compromise position that could unite the Court. And an easy, 9-0 decision mattered more than recovering the original meaning of the Takings Clause. Indeed, that proffer of compromise drew praise from Linda Greenhouse. (Greenhouse also offered some adulation for ACB). I suspect my co-blogger Ilya Somin is correct, and no other Justice will go down the Reed Road. But why does Kavanaugh consistently feel the need to strike these far-flung compromises, rather than pursue the original meaning of the Constitution? His priorities are to precedent and institutionalism first, and originalism second.

Likewise, in Ford, Kavanaugh didn't express any interest about whether International Shoe is correct as an original matter. He simply went along with Justice Kagan's "gloss." I completely agree with Justice Gorsuch's admonition in Ford Motor Co.: "Seeking to understand the Constitution's original meaning is part of our job." And that job is unflagging.