Judge Kavanaugh on the Fourth Amendment

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.

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.

1. The balancing cases: Askew and Vilsack

The first two cases to consider involve balancing of government and privacy interests. In both cases, the majority held that the government practice violated the Fourth Amendment. Kavanaugh dissented, largely on the ground that he would have balanced the interests differently and therefore would have ruled for the government. In a close case that requires balancing of interests, the cases suggest, Kavanaugh is more likely to approach the case from the government’s perspective than from the individual’s perspective.

The first case is United States v. Askew, a stop-and-frisk case. The police stopped the suspect based on suspicion that he had just committed an armed robbery. After an initial frisk for weapons came up empty, an officer unzipped the suspect’s outer jacket to see if his clothing matched eyewitness descriptions of what the robber was wearing. It turned out the initial frisk had been poorly done: Unzipping the jacket revealed a gun in Askew’s waist pouch. Remarkably, the D.C. Circuit went en banc and divided sharply over whether the outer-jacket unzipping was allowed. As I joked at the time, the D.C. Circuit’s 85 pages of serious constitutional analysis, spread over three opinions, was “the latest in zipper jurisprudence.”

Askew is factually messy and a bit hard to summarize, but the most significant legal issue was whether the Fourth Amendment permits the police to move a suspect’s clothing to facilitate an eyewitness identification during a stop that is otherwise valid under the Supreme Court’s 1968 decision in Terry v. Ohio. There was no obvious answer from Supreme Court caselaw. The en banc D.C. Circuit did not reach a majority view on the issue, although five of its 11 judges, Judges Harry Edwards, Judith Rogers, David Tatel, Janice Brown and Thomas Griffith, argued that identification searches were not permitted. Kavanaugh wrote a 32-page dissent, joined by then-Chief Judge David Sentelle and Judges Karen Henderson and Raymond Randolph, that argued that the unzipping to help identification should be allowed. In his view, the reasonableness framework that applies to Terry stops generally also permits reasonable identification procedures.

The most interesting passage in the dissent is probably Kavanaugh’s policy argument. “Prohibiting the police during Terry stops from conducting identification procedures that constitute searches,” he argued, “would lead to absurd and dangerous results.” For example, imagine that the police detained a suspect in a rape case and the victim claimed that the suspect had a distinctive tattoo on his forearm. If the police detained the suspect on reasonable suspicion of having committed the crime, Kavanaugh argued, the police should be allowed to pull up the suspect’s sleeve to see if he has the tattoo the victim claims. Not allowing limited moving of clothing to identify suspects would “hamstring the police and prevent them from performing reasonable identification procedures that could solve serious crimes and protect the community from violent criminals at large.”

You can see a similar focus on public safety in National Federation of Federal Employees v. Vilsack, a case about whether the Fourth Amendment permitted random drug testing for Forest Service Job Corps Center employees. The employees ran a residential job corps program at public schools for at-risk students aged 16 to 24. Under the Supreme Court’s caselaw, resolving the constitutionality of the program required weighing the non-law-enforcement public-safety interest advanced by the drug testing against the degree of privacy invasion it caused. Rogers, joined by Judge Douglas Ginsburg, held that the program violated the Fourth Amendment under this test because it was “a solution in search of a problem.” There was insufficient evidence that a drug problem existed among the staff to justify testing, they reasoned. In addition, testing every employee was too broad because different employees served in different capacities.

Kavanaugh dissented. In his view, the drug-testing program was clearly reasonable. “Indeed,” he wrote, “it would seem negligent not to test” the employees for drugs. Many of the at-risk students had a history of drug problems. “To maintain discipline,” Kavanaugh argued, it was important that employees who ran the program were drug-free themselves and were not potential sources of illegal drugs for the students. As a result, the government had “a strong and indeed compelling interest in maintaining a drug-free workforce at these specialized residential schools for at-risk youth.” On the flip side, the privacy invasion was modest. The testing only required providing a urine sample, and it only revealed the presence of certain illegal drugs.

2.  The flagging-for-SCOTUS cases: Wesby and Maynard

The next two cases show Kavanaugh writing on the Fourth Amendment in dissents from denial of rehearing en banc. In both cases, the original panel reached a surprising holding that the government had violated the Fourth Amendment. In both cases, Kavanaugh dissented from the full circuit’s refusal to review the outlier panel opinion. And in both cases, the Supreme Court subsequently granted certiorari and handed down a majority opinion that largely echoed Kavanaugh’s reasoning. I think of these cases as the “flagging for SCOTUS” cases because it’s possible that Kavanaugh’s dissents were written to flag the cases for the justices. And whether or not Kavanaugh intended it, his dissents appear to have done just that.

The first case is along these lines is Wesby v. District of Columbia, which involved trespass arrests at a loud party held in a vacant house. When the police arrived, and the people in the house had trouble identifying whose house it was, the police arrested everyone for trespass. The group sued the officers under the Fourth Amendment. In an opinion by Judge Cornelia Pillard, the D.C. Circuit somewhat remarkably held that the arrests violated the Fourth Amendment and that qualified immunity did not apply. Kavanaugh penned a dissent from denial of rehearing en banc that was joined by Henderson, Brown and Griffith.

Although Kavanaugh’s dissent mentioned the Fourth Amendment merits in passing, it focused primarily on qualified immunity. In Kavanaugh’s view, qualified immunity plainly barred the suit. Both the facts and the law created lots of room for a reasonable officer to believe the arrests were based on probable cause. “To be sure,” he added, “I do not dismiss the irritation and anguish, as well as the reputational and economic harm, that can come from being arrested. Police officers should never lightly take that step, and the courts should not hesitate to impose liability when officers act unreasonably in light of clearly established law. But that is not what happened here, not by a long shot.” The Supreme Court granted cert and reversed unanimously, ruling that probable cause existed (a view held by seven justices) and holding that in any event qualified immunity applied much as Kavanaugh had argued (a position taken by all nine justices).

A roughly similar dynamic occurred with Kavanaugh’s dissent from denial of rehearing in United States v. Maynard, later reviewed by the Supreme Court under the name United States v. Jones. Investigators placed a GPS device on the suspect’s car and tracked its location for 28 days. In an astonishing opinion for the D.C. Circuit, Ginsburg created the “mosaic theory” by which the monitoring was not a search at first but over time became a search because the government collected a search-like amount of information. The en banc D.C. Circuit denied the petition for rehearing 5-4. Kavanaugh joined Sentelle’s dissent from denial of rehearing, which argued that the panel opinion was inconsistent with Supreme Court and other circuits’ precedents and deserved en banc review.

The most interesting part of Kavanaugh’s approach to Maynard is that he wrote a brief separate dissent that flagged an alternative ground for ruling that a search occurred. Maybe it was the installation of the GPS that was a search, Kavanaugh suggested, rather than its use. Fourth Amendment caselaw before Katz v. United States had held that physical intrusion onto property was a search. If that caselaw was still valid – “and I see no indication that it is not,” Kavanaugh added – then installing the GPS device could be a search because it was an unauthorized physical encroachment on to the property of the suspect’s car. “I do not yet know whether I agree with that conclusion,” Kavanaugh wrote, “but it is an important and close question” deserving en banc review. When the government petitioned for certiorari, the lawyers for the defense added Kavanaugh’s theory as a second question presented in their brief in opposition.

The Supreme Court took up Kavanaugh’s suggestion. The justices granted certiorari under the name United States v. Jones on the Fourth Amendment implications of both installing the GPS device and its use. The majority opinion by Justice Antonin Scalia essentially adopted Kavanaugh’s approach. Installing a GPS was deemed a search because the installation trespassed on to the car. Jones sharply changed Fourth Amendment blackletter law by recognizing two different ways of establishing a search: the Katz test and the pre-Katz trespass test that Kavanaugh had proposed. To be sure, Kavanaugh’s view didn’t come from nowhere. There had been something of a split on the question, and I agreed at the time that this should be the big question. But Kavanaugh was the one who best articulated the theory and teed it up for the justices.

3. The Section 215 opinion in Klayman

The last Kavanaugh opinion to consider is the one that has drawn the most attention. In Klayman v. Obama, Judge Richard Leon had ruled for the district court that the National Security Agency’s Section 215 call-records program violated the Fourth Amendment. Under the program, the NSA was getting the numbers dialed (but not the contents) for millions of Americans’ phone calls. Leon ruled that the program was unconstitutional but then stayed any remedy while the appeal was pending. The D.C. Circuit sent the case back to the district court on procedural grounds. With the Section 215 program about to expire, Leon quickly handed down a new decision that the program was unlawful and refused to grant a stay. The next day, the D.C. Circuit issued an administrative stay; plaintiff Larry Klayman then sought an emergency petition for rehearing en banc, which the full court denied.

Kavanaugh filed a two-page solo concurrence in the denial of rehearing. In his view, the Section 215 program was “entirely consistent with the Fourth Amendment.” That was true for two reasons. First, the Supreme Court had held that collecting telephony metadata was not a search in Smith v. Maryland. Smith settled the Section 215 question, in Kavanaugh’s view: “That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.” Second, even if a future court adopted a different a view of what is a search, the Section 215 program was still reasonable under the balancing of interests of the “special needs” exception (see the discussion of Vilsack above). “[T]elephony metadata serves a critically important special need – preventing terrorist attacks on the United States,” Kavanaugh wrote, citing the 2004 9/11 Commission Report. “[T]hat critical national security need outweighs the impact on privacy occasioned by this program.”

What to make of Kavanaugh’s Klayman concurrence? On one hand, his view that the program satisfied the Fourth Amendment under Smith was doctrinally correct, in my view, at least before Carpenter v. United States last month. It’s surprising that Kavanaugh didn’t develop the Smith argument more. He gave the whole point only two sentences. But the argument was sound, and it matched what several district courts had said at that point (one example being the U.S. District Court for the Southern District of California in 2013 in United States v. Moalin).

On the other hand, I’m less persuaded by Kavanaugh’s argument that Section 215 would fit the special-needs exception if call-records collection is a search. I would think the question is how much the program actually advances the interest in preventing terrorist attacks, not just the importance of its goal in the abstract. But note the echo of Kavanaugh’s Vilsack dissent. In both cases, Kavanaugh applied the special-needs exception in ways that construed the government interests as very weighty and the privacy interests as comparatively light.

4.  Like Rehnquist, or perhaps like Kennedy?

A final data point for Kavanaugh’s Fourth Amendment views is his recent speech on Chief Justice William Rehnquist. Kavanaugh celebrates Rehnquist as Kavanaugh’s “first judicial hero.” As a law student, “[i]n class after class,” Kavanaugh found that he “stood with Rehnquist.” Kavanaugh is quick to say that he doesn’t agree with every Rehnquist opinion. But in the course of a rather glowing overview of Rehnquist’s impact as a justice – one that Kavanaugh describes as a “labor of love” to deliver — Kavanaugh describes how Rehnquist “led the charge in rebalancing Fourth Amendment law” after the Warren Court’s criminal-procedure revolution had expanded the rights of criminal defendants.

Kavanaugh mentions three areas in particular. First, Rehnquist wrote opinions making the probable cause standard “more flexible and commonsensical.” Second, Rehnquist wrote decisions “expanding the category of special needs searches,” which is a particularly interesting reference in light of Kavanaugh’s separate opinions in Vilsack and Klayman. Finally, Rehnquist opposed the exclusionary rule as a “judge-created rule” that “was beyond the four corners of the Fourth Amendment’s text and imposed tremendous costs on society.” Although Rehnquist did not succeed in having the exclusionary rule overturned, he “dramatically changed the law of the exclusionary rule” over time through the good-faith exception and other doctrines.

One takeaway from Kavanaugh’s speech is that his Fourth Amendment views probably aren’t too far from Rehnquist’s. Rehnquist was a pretty reliable voice for law enforcement interests in Fourth Amendment cases. The affinity may be revealing.

With that said, it’s also worth noting that Rehnquist’s views in Fourth Amendment cases also weren’t too far from that of Kennedy, the justice for whom Kavanaugh clerked and whose place Kavanaugh has been nominated to fill. Like Rehnquist, Kennedy tended to take a law-enforcement-oriented view in Fourth Amendment cases. You might say that Kennedy’s views of the Fourth Amendment were Rehnquist-like but without the broader agenda of “rebalancing” the rules after the Warren court.

If so, perhaps Kavanaugh’s views are better described as Kennedy-esque than Rehnquist-like. Like Kennedy, Kavanaugh seems to take government interests very seriously. At the same time, Kavanaugh’s opinions don’t seem to reflect a broader agenda. Recall Kavanaugh’s Maynard concurrence in particular. Although Kavanaugh was unpersuaded by the panel opinion’s novel theory, he wrote separately to provide an alternative basis for concluding that the GPS installation was a search.