Steptoe & Johnson LLP
In late June, Justice Anthony Kennedy announced his retirement from the Supreme Court, effective July 31. Justice Kennedy was known as the swing vote in a number of decisions. Though often considered a conservative justice, he sided with the Court’s liberals on key social issues, such as abortion, gay rights and affirmative action. With respect to law enforcement, however, his legacy is mixed.
The Reagan-appointed justice repeatedly declined to expand the Fourth Amendment to accommodate a broader view of privacy rights in light of developing surveillance technology. His recent dissent in Carpenter v. United States, 585 U.S. ____ (2018), which held that police are required to obtain a warrant to access cell-site location records, demonstrates his belief that the cellphone records at issue are no different from other types of records the government already has a legal right to obtain without a warrant.
In other cases, though, Justice Kennedy sided against law enforcement. For example, in Bailey v. United States, 568 U.S. 186 (2013), he wrote for the majority in holding that it was an unreasonable seizure under the Fourth Amendment for police to detain and search an individual away from where a search warrant had been granted. Justice Kennedy also restricted the use of the death penalty and joined decisions allowing defendants eligible for the death penalty to present and have fully considered all relevant mitigating evidence.
With Justice Kennedy’s retirement, all eyes now turn to Judge Brett Kavanaugh, President Trump’s nominee to replace him. Originally nominated by President George W. Bush in 2003 to serve on the United States Court of Appeals for the District of Columbia Circuit, Judge Kavanaugh’s confirmation stalled for nearly three years as Democratic senators accused him of being too partisan. At the time of his D.C. Circuit Court nomination, Kavanaugh had been serving in President Bush’s White House as staff secretary, a usually unassuming role dedicated to controlling the flow of documents to and from the president. Emails recently released, though, suggest that Kavanaugh may have had significant influence on a number of controversial matters, including President Bush’s decision to sign into a law a partial-birth abortion ban and his backing of a constitutional amendment banning gay marriage.
During his decade-plus-long tenure on the D.C. Circuit Court of Appeals, Judge Kavanaugh consistently sided with law enforcement. With respect to police searches, for example, he dissented in 2010 from a decision not to rehear a case en banc — i.e., before the entire D.C. Circuit — where a prior panel held that police violated an alleged drug dealer’s rights when they placed a GPS device on the individual’s car without a warrant. Judge Kavanaugh reasoned that placing the device on the car may have violated the individual’s Fourth Amendment right to be free from unreasonable searches and seizures, but the use of the device to track the person’s movements was constitutional. The Supreme Court disagreed with him, ruling unanimously in United States v. Jones, 565 U.S. 400 (2012), that installing the GPS tracking device and using it to monitor the vehicle’s movements violated the Fourth Amendment.
Judge Kavanaugh also is a proponent of stop-and-frisk, writing a majority opinion in U.S. v. Bullock, 570 F. 3d 342 (D.C. Cir. 2007), that upheld the frisking of a motorist who made an illegal U-turn, was subsequently stopped by police and who could not produce a vehicle registration. He also vigorously dissented in United States v. Askew, 529 F.3d 1119 (D.C. Cir. 2008), a stop-and-frisk case where an individual was brought before an eyewitness to a robbery to see whether the eyewitness recognized him. After an initial “pat down” of the suspect came up empty, an officer unzipped the suspect’s outer jacket to check whether his clothing matched eyewitness descriptions of what the robber was wearing. The unzipping of the jacket revealed a gun. Judge Kavanaugh argued in his dissent that the Fourth Amendment permits the police to move a suspect’s clothing to help in eyewitness identification.
With respect to digital privacy, Judge Kavanaugh’s arguably most famous decision was in Klayman v. Obama, 805 F. 3d 1148 (D.C. Cir. 2015), a case about the National Security Agency’s (NSA) metadata collection program. The NSA’s Section 215 call-records program collected without disclosure the numbers dialed (but not the contents) of millions of Americans’ phone calls. In a short concurring opinion, Judge Kavanaugh viewed the Section 215 program “entirely consistent with the Fourth Amendment.” He reasoned the collection of data was not a search and that — even if it was — it was reasonable under the “special needs” exception to the Fourth Amendment’s warrant requirement. Judge Kavanaugh, who was working in the White House on September 11, 2001, saw the program as a national security tool to combat terrorism.
So, what does Brett Kavanaugh mean for law enforcement? In Fourth Amendment cases, “Justice” Kavanaugh would likely side with the government. While his time on the D.C. Circuit Court of Appeals was spent more on reviewing federal government administrative actions than on deciding criminal justice matters, his limited criminal jurisprudence and conservative views on other matters suggest that he will be hesitant to expand Fourth Amendment protections. Circuit court judges are constrained by precedent in their rulings, but Supreme Court justices have more leeway. Judge Kavanaugh will likely carry his staunch beliefs with him to the High Court.
Judge Kavanaugh’s September confirmation hearings are expected to last three to four days, whereafter he needs only a simple majority in the 100-seat Senate to be confirmed. Republicans currently hold a 51–49 advantage over Democrats and Independents, and it is possible some Democrats could vote for Kavanaugh. These include Democratic senators from states that voted for Trump in 2016 — such as Senators Joe Donnelly (D–Indiana), Heidi Heitkamp (D–North Dakota) and Joe Manchin (D–West Virginia). They had all voted for President Trump’s first Supreme Court pick, Neil Gorsuch.