The Senate Judiciary Committee hearings to confirm Judge Brett Kavanaugh to the Supreme Court opened with fireworks Tuesday, as Democratic senators schemed to halt the hearing and liberal activists heckled lawmakers from the audience.
What did Kavanaugh do to deserve such antics? He is, after all, supremely qualified—even the American Bar Association, long recognized as biased against conservative judicial nominees, says so.
But as Heritage Foundation scholar Tom Jipping put it, the “debate over judicial appointments is really a debate over judicial power” and the role of judges in society. Kavanaugh does not subscribe to the “living Constitution” theory of jurisprudence or the belief espoused by some liberals: that judges should decide cases based on who is suing whom or on policy grounds rather than based on the law as written.
He is instead an originalist and a textualist, a noted critic of the ever-expanding and seemingly boundless authority of the administrative state, and a firm believer in the limited role of judges as impartial “umpires” who say what the law is, not what they believe it should be.
That judicial philosophy comes through clearly in the more than 300 opinions he has authored during his 12-year tenure on the U.S. Court of Appeals for the D.C. Circuit. Much attention—including a fair bit of political grandstanding—has been devoted to Kavanaugh’s record on contentious social issues like the Second Amendment and abortion.
But the Supreme Court hears cases on a wide array of topics, not just “hot button” social issues. One of them—and one which will inevitably grow in importance in the decades to come—is the area of law and technology.
Kavanaugh is poised to serve on the court during what could be a formative period, as courts and society wrestle with the growing impact of emerging technologies in areas including privacy, free expression, and the proper role of government in regulating it.
Though comparatively few of Kavanaugh’s cases have dealt with technology issues specifically, those he has been involved in have been notable and demonstrate Kavanaugh’s nuanced, insightful, and originalist approach even to novel technology questions.
Consider the case of United States v. Maynard, which challenged on Fourth Amendment grounds the warrantless, continuous use of a GPS tracking device mounted on a vehicle to monitor a suspect for a month.
A three-judge panel of the D.C. Circuit ruled that the surveillance violated the suspect’s Fourth Amendment rights. The court put forward a novel “mosaic theory” to explain how someone could initially have no reasonable expectation of privacy in their public movements, but could acquire such a right over time.
Kavanaugh rejected that theory, noting it conflicted with prior Supreme Court precedent, and offered an alternative rooted in an originalist understanding of the Fourth Amendment. Even if the GPS tracking did not constitute an invasion of privacy, perhaps the defendant’s Fourth Amendment rights were violated in another way: by the placement of the tracker on the car, which could constitute a trespass.
Kavanaugh’s property-rights argument caught the eye of the Supreme Court, which adopted his reasoning in its unanimous opinion in United States v. Jones.
Drones and Agency Deference
The doctrine known as Chevron deference holds that judges must accept an agency’s interpretation of ambiguous statutes, so long as that interpretation is reasonable. Chevron affords administrative agencies tremendous leeway in defining the scope of their own power—something Kavanaugh himself once described in the Harvard Law Review as “nothing more than a judicially orchestrated shift of power from Congress to the executive branch.”
All too often, Chevron permits agencies to expand their regulatory authority far beyond what Congress originally contemplated, sometimes to such an extent that the agency asserts it has authority to do something lawmakers expressly forbade.
Kavanaugh had an opportunity to address just such an incident in a 2017 case, Taylor v. Huerta.
The Federal Aviation Administration promulgated a rule requiring recreational operators of small drones weighing more than 0.55 pounds to register with the federal government or face significant civil and criminal fines, and possible imprisonment.
One drone operator, John Taylor, filed suit, pointing out that Congress barred the FAA from imposing new rules on drone operators back in 2012. The agency asserted in court that its new rule was not actually a new rule at all. Regardless, the agency contended the registration requirement should be upheld because it was needed as a policy matter—the proliferation of drones in the airspace was jeopardizing public safety.
Writing for a unanimous three-judge panel, Kavanaugh wrote simply that “Taylor is right.” After looking at the timeline of FAA regulation of drones and congressional action, Kavanaugh determined that Congress had plainly acted to bar FAA action, and the FAA had proceeded with its rulemaking after lawmakers had clearly spoken. “Statutory interpretation does not get much simpler,” Kavanaugh wrote.
The FAA’s argument that it should prevail on policy grounds fared no better. Kavanaugh succinctly pointed out that “Congress is of course always free to repeal or amend” the laws it passes, but judges “must follow the statute as written.”
And so must the agencies. Congress may choose inaction or embark on what bureaucrats consider to be unwise policymaking, but that cannot justify administrative agencies taking matters into their own hands. To do so would violate the separation of powers, the Constitution’s built-in bulwark protecting individual liberty.
Kavanaugh addressed the issue of agencies going rogue head-on in one of the most important technology-related cases in recent years, the 2015 challenge to the Federal Communications Commission’s net neutrality order.
Net neutrality became a cause celebre on the left, upending decades of light-touch regulation of the internet in favor of treating internet service providers as heavily-regulated common carriers barred from, among other things, blocking content or throttling data speeds.
In a dissent from a denial of rehearing, Kavanaugh disagreed strongly with the finding of the three-judge panel that the FCC had the authority to do this. He acknowledged that the underlying statute—the 1934 Communications Act—was ambiguous, and that if this were an “ordinary rule,” Chevron would likely compel him to accept the FCC’s new classification.
But net neutrality was no “ordinary rule”—it was one of the most impactful regulations in history, belonging to “a narrow class of cases involving major agency rules of great economic and political significance.”
In these cases, Chevron is flipped on its head. Where otherwise a statutory ambiguity invites agency action, for major rules it “prevents an agency” from acting. Under Supreme Court precedent, lower courts must presume that Congress never intended to hand away huge swaths of its lawmaking power through ambiguity alone. To do otherwise would undermine the separation of powers.
The net neutrality case is illustrative of another tenet of Kavanaugh’s judicial approach: his commitment to originalism. He argued that the FCC net neutrality order violated the First Amendment rights of internet service prodivers to “exercise editorial discretion” to decide what content to deliver on their services.
At the time of the founding, the First Amendment protected the rights of “publishers, newspapers, and pamphleteers” to control the content they published. There was no recognized government authority to compel newspapers “to publish letters or commentary from all citizens,” nor to require book publishers to “accept and promote all books on equal terms.”
These protections were extended to cable television operators in two Supreme Court cases in the 1990s, the Turner Broadcasting cases, and Kavanaugh found the arguments that a distinction existed between internet and cable providers to be unpersuasive: “Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes.”
In other words, constitutional first principles are not jettisoned merely because new technologies are developed.
In each of these cases, Kavanaugh clearly could have treated a novel technological challenge—GPS surveillance, drone threats to aviation safety, or public access to internet content—as a fresh opportunity to engage in judicial activism. At any point in these tough and often contentious cases, he could have chosen the easy way out: rewriting laws he felt were outdated or wrongheaded, or weakening constitutional limits on government power in the name of efficiency.
Instead, Kavanaugh chose the harder, more principled path rooted in the original meaning of the Constitution, in the text of the laws at issue, and in the Supreme Court’s precedents. That’s the right approach for these modern times.
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