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Our coverage of Judge Brett Kavanaugh’s nomination to the Supreme Court is available at this link.

Orin S. Kerr is the Frances R. and John J. Duggan Distinguished Professor of Law at the University of Southern California Gould School of Law.

Judge Brett Kavanaugh’s views of the Fourth Amendment have drawn significant interest following his recent nomination to the Supreme Court. This post takes a close look at Kavanaugh’s key Fourth Amendment opinions. It does so with an eye to guessing how he might rule in search and seizure cases if he is confirmed to the Supreme Court. The Supreme Court has a large Fourth Amendment docket. How might a Justice Kavanaugh approach those cases?

My analysis is tentative for two reasons. The first is probably obvious. Circuit judges are supposed to follow Supreme Court and circuit precedent, while Supreme Court justices have much more room to roam. Given that, translation is hard. You never know how much of a circuit judge’s rulings simply reflect a lower court judge’s commitment to stare decisis.

A second reason for caution is that Kavanaugh’s Fourth Amendment record is modest. The U.S. Court of Appeals for the District of Columbia Circuit doesn’t get many search and seizure cases. A Westlaw search revealed around 35 cases in the subject area in which Kavanaugh sat on the panel or considered a rehearing petition en banc. Most of those were unanimous and pretty easy. I found only five Fourth Amendment decisions, and one recent speech, that I think might reveal something significant about his approach.

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We’ve collected extra-judicial writing, speeches and panel appearances of Judge Brett Kavanaugh. We may continue to update this post as we find additional materials.

Articles and speech transcripts published in law reviews

Defense Presence and Participation: A Procedural Minimum for Batson v. Kentucky Hearings,” published in Volume 99 of the Yale Law Journal, 1989

The President and the Independent Counsel,” published in Volume 86 of the Georgetown Law Journal, 1997

Separation of Powers During the Forty-Fourth Presidency and Beyond,” published in Volume 93 of the Minnesota Law Review, 2008

War, Terror, and the Federal Courts, Ten Years After 9/11,” Published in Volume 61, Issue 5, of the American University Law Review, 2012 (subscription may be required)

A Dialogue with Federal Judges on the Role of History in Interpretation,” transcript of a 2011 panel discussion published in Volume 80, Number 6, of the George Washington Law Review, 2012

Sumner Canary Memorial Lecture: “The Courts and the Administrative State,” published in Valume 64, Issue 3, of the Case Western Reserve Law Review, 2014

Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution,” Published in Volume 89, Issue 5, of the Notre Dame Law Review, 2014

Fixing Statutory Interpretation,” a book review of “Judging Statutes,” by Robert Katzmann, published in Volume 129 of the Harvard Law Review, 2015

The Judge as Umpire: Ten Principles,” a transcript of a speech given as part of the Pope John XXIII Lecture Series at the Catholic University of America, published in Volume 65, Issue 3, of the Catholic University Law Review, 2016

Keynote Address for the Federal Courts, Pratice & Procedure Symposium: Justice Scalia and the Federal Courts: “Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions,” published in Volume 92, Issue 5, of the Notre Dame Law Review, 2017

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Friday round-up

By on Jul 20, 2018 at 9:49 am

Judge Brett Kavanaugh remains atop the slow-moving Supreme Court news cycle. Adam Liptak of The New York Times surveys 12 sets of evaluations spanning 700 pages from about 350 law students at Harvard, Yale and Georgetown and finds “almost only glowing praise for Judge Kavanaugh’s teaching.” Former Harvard students praise Kavanaugh in a letter at Boston Globe.

Lorraine Woellert of Politico covers the refusal of New York Senate Minority Leader Chuck Schumer and other Democratic leaders to meet with Kavanaugh, “another salvo in the deepening cold war” between Trump and Schumer. Elise Viebeck of The Washington Post reports that Senator Dianne Feinstein, Democrat of California, said Wednesday that senators expect to receive “at least 1 million pages of documents” related to Kavanaugh’s time in President George W. Bush’s administration and as a Republican “political operative,” which Viebeck calls “a sign of a mammoth task that could slow the timeline for confirmation hearings.” Coverage on polling about Kavanaugh’s possible confirmation – from Gallup, the Pew Research Center and Fox News – comes from Alex Lubben for Vice News and Nathaniel Rakich of FiveThirtyEight.

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Judge Brett Kavanaugh wrote an interesting dissent in Seven-Sky v. Holder, a 2011 appeal to the U.S. Court of Appeals for the District of Columbia Circuit about the constitutionality of the individual mandate provision of the Patient Protection and Affordable Care Act. In that case, a panel majority (Judges Laurence Silberman and Harry Edwards) upheld the statute against a constitutional challenge, but Kavanaugh would not have reached the merits. Instead, he would have held that the courts lacked jurisdiction to hear the case because the Anti-Injunction Act bars any pre-enforcement lawsuit challenging the assessment or collection of a tax. Damon Root at Reason suggests that this case shows Kavanaugh to be “a jurist in the mold of John Roberts,” while, as Linda Qiu writes for The New York Times, Democratic leaders have framed Kavanaugh’s dissent in this case and another as demonstrating his “hostility” to the ACA.

The dissent is thorough, taking 33 pages of the Federal Reporter when the majority opinion addressing both jurisdiction and the merits occupied only 17. After an introductory summary, the dissent works through each step of the argument that the Anti-Injunction Act bars courts’ consideration of the challengers’ suit. It explains how the individual mandate is enforced by the Internal Revenue Service through tax penalties, argues that the Anti-Injunction Act is jurisdictional so that the executive branch’s decision to waive reliance on it was irrelevant, and contends that the Anti-Injunction Act applies because, even though the payments for violating the individual mandate are labeled “penalties” and not “taxes,” some penalties are subject to the Anti-Injunction Act — and there are some textual indicators that the ACA’s penalties fall within that category. The dissent then responds to statutory counter-arguments. It offers an alternative basis for holding that the Anti-Injunction Act applies, which had been accepted by the U.S. Court of Appeals for the 4th Circuit. And then it spends the final 13 pages answering the argument that the court should decide the case — for either legal or prudential reasons — even if the Anti-Injunction Act applies.

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Thursday round-up

By on Jul 19, 2018 at 11:08 am

As Judge Brett Kavanaugh’s nomination reaches its 10th day, it continues to generate interest. Jeffrey Jones presents the results of a Gallup poll: A “four-percentage point margin [in favor of Kavanaugh’s confirmation] is slimmer than any Gallup has measured in its initial read on 10 prior nominees since 1987,” with the average margin being 23 points. At the same time, Scott Bixby of the Daily Beast reports that “[p]rogressive groups are falling behind in the war over President Donald Trump’s Supreme Court nominee—and they’re barely trying to catch up.” Additional coverage comes from Matt Vespa for Townhall. Kevin Daley of The Daily Caller reports that a “left-leaning advocacy group, which plans to spend millions opposing Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court, has obscured its funding sources through an opaque organizational structure.”

Manu Raju of CNN reports on remarks by Kavanaugh about “his desire to overturn a three-decade-old Supreme Court ruling upholding the constitutionality of an independent counsel,” a comment Raju predicts will “get renewed scrutiny,” although Raju adds that whether “Kavanaugh views Mueller’s appointment and investigation itself as unconstitutional is unclear, given the special counsel works directly for the Justice Department under a different set of rules that governed the independent counsel.” At Daily Kos, Rebecca Pilar Buckwalter-Poza suggests that the “more telling part of the video clip is Kavanaugh’s slippery discussion of stare decisis, the principle that a court should almost always adhere to precedent.”

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During his campaign for the presidency, then-candidate Donald Trump announced that he would appoint justices to the Supreme Court who would overturn Roe v. Wade, the 1973 case establishing a woman’s right to terminate her pregnancy. Other presidents have made similar promises before, but they have not always come to pass. For example, in 1981 President Ronald Reagan nominated Sandra Day O’Connor, who would later vote to reaffirm the core holding of Roe. One of the justices who joined O’Connor in upholding Roe that year was another Reagan appointee, Justice Anthony Kennedy, who announced his retirement earlier this summer. Kennedy’s pivotal role in the Supreme Court’s abortion cases has prompted intense scrutiny of the views of Judge Brett Kavanaugh, whom Trump nominated to succeed Kennedy. Although there is no way to know whether Kavanaugh would vote to reverse Roe, there are at least a few signs, in a recent lecture and his dissent in a case involving access to abortion, suggesting that Kavanaugh might be more receptive to laws and policies restricting abortion than Kennedy was.

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Michael Livermore is professor of law at University of Virginia School of Law.

As in many other areas, Justice Anthony Kennedy was the swing vote in environmental cases, lining up in the middle of his more reliably conservative and liberal peers. His proposed replacement, Judge Brett Kavanaugh, has exhibited a very clear track record of relative solicitousness to regulated industry and skepticism to environmental interests. These instincts will likely place him to the right of Chief Justice John Roberts in environmental cases, shifting Roberts to the center of the court. As a consequence, we can expect that a Kavanaugh confirmation would usher in a court that is considerably less sympathetic to environmental protections. This new alignment may have particularly profound effects in the coming years in litigation involving greenhouse gas emissions and federal jurisdiction over water pollution.

When the Supreme Court decides environmental cases, its primary role is in defining the scope of agency authority under one of the major environmental statutes (such as the Clean Water Act) or passing on the legality of an agency action. Because of the specificity of many environmental cases — interpreting the language in one provision of a long and complex statute or examining the administrative record that supports a particular agency decision — the doctrines that arise in environmental cases are typically fairly contained. Where they have more general applicability, it is often because they are intertwined with other questions, such as administrative law issues.

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On July 19 from 2 p.m. to 3 p.m. in Washington, the Humanist Legal Society will host a panel entitled, “The Supreme Court after Kennedy: What’s Next for LGBT and Women’s Rights?” Speakers include Shannon Minter, Maya Rupert and David Codell. More information, including registration instructions, is available here.


Wednesday round-up

By on Jul 18, 2018 at 6:58 am

Judge Brett Kavanaugh’s nomination continues to dominate court-watchers’ attention. At Politico, Lorraine Woellert reports that “[m]ore Americans oppose the confirmation of Judge Brett Kavanaugh to the Supreme Court than that of any other nominee in recent history, according to a poll from the nonpartisan Pew Research Center.” Kevin Daley reports for The Daily Caller that “[a] left-leaning advocacy group, which plans to spend millions opposing … Kavanaugh’s nomination …, has obscured its funding sources through an opaque organizational structure.” For NBC News, Alex Seitz-Wald reports that Kavanaugh’s “confirmation process …  could answer a question first raised more than a decade ago about whether the judge once misled Congress, as two senators then alleged.”

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On July 24 at 1 p.m. EST, the National Association of Counties will host a webinar reviewing the past Supreme Court term. Speakers include Eric Citron, Shay Dvoretzky and Lydia Wheeler. To register for the webinar go here.

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