Sunday, July 22, 2018

Judge Kavanaugh on the Fourth Amendment

by Orin Kerr

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.

With those two important caveats, here’s my overall sense of things. In tough Fourth Amendment cases that divide the Supreme Court, a Justice Kavanaugh would likely be on the government’s side. He is wary of novel theories that would expand Fourth Amendment protection. And he often sees the Fourth Amendment’s requirement of reasonableness as giving the government significant latitude. If we had to associate Kavanaugh with a familiar justice, the limited evidence suggests that his approach in Fourth Amendment cases is probably somewhere in the ballpark of Justice Anthony Kennedy or Chief Justice William Rehnquist. I’ll now run through the five key cases, and Kavanaugh’s recent speech, to explain why I think that’s the case.

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