With a tightly divided Senate, Judge Brett Kavanaugh's confirmation to the Supreme Court could come down to one thing: where he falls on the controversial issue of surveillance and the right to privacy.
Rand Paul (R., Ky.) made waves Monday by suggesting that he was still on the fence about backing Kavanaugh. The famously mercurial senator from Kentucky, whose vote could cost Kavanaugh the nomination in a Senate split 51 to 49 for the Republicans, has said previously that his concerns about Kavanaugh come down to how the judge would interpret the Fourth Amendment's protections against unreasonable searches and seizures.
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"I am honestly undecided. I am very concerned about his position on privacy and the Fourth Amendment. This is not a small deal for me. This is a big deal," Paul said, according to Politico. "Kavanaugh's position is basically that national security trumps privacy. And he said it very strongly and explicitly. And that worries me."
Paul's comments are the latest in a continuing debate over America's surveillance apparatus and its fit with the Constitution.
The Supreme Court split 5-4 in Carpenter v. United States in June with a majority decision—heralded by privacy advocates but from which Kavanaugh's expected predecessor, Anthony Kennedy, dissented—that imposed limitations on police surveillance of suspected criminals' phone records in certain limited circumstances.
Carpenter, which recognized that police surveillance of third-party records may reveal more today than 40 years ago, signals that as surveillance technology continues to evolve, so too may the Supreme Court's jurisprudence. As such, how Kavanaugh will affect this highly nebulous area of law is an important concern for Paul and his Senate colleagues.
Unfortunately for SCOTUS watchers, there are few clues to indicate Kavanaugh's views. As a federal appeals-court judge, Kavanaugh must adhere to preexisting Supreme Court precedents. That means he had less latitude in expressing the sort of positions he would take if seated on the more unencumbered Supreme Court.
Nonetheless, a number of cases point the way. Orin Kerr, a law scholar at the University of Southern California, highlighted four in a post at SCOTUSBlog, arguing that Kavanaugh's writings indicate a general preference for security concerns over privacy interests in cases where balancing the two is called for.
For example, in United States v. Askew Kavanaugh dissented from his colleagues to contend that a certain kind of stop-and-frisk procedure was constitutionally licit. While the majority claimed that checking under a suspect's clothes after an initial search violated the Fourth Amendment, Kavanaugh argued that prohibiting such searches "would lead to absurd and dangerous results." He also defended mandatory drug testing of certain federal employees agreed to be at risk for drug use, on a similar balance-of-interests grounds in NFFE v. Vilsack. There, he also disagreed with the majority in preferring the state's interest in safety of its workplace to the minimal intrusion on the privacy of employees.
More than once, Kavanaugh's balancing opinions were picked up by the Supreme Court, with his reasoning applied in majority decisions. In Wesby v. District of Columbia, the Supreme Court unanimously reversed a D.C.-Circuit ruling that the arrest of a group of partygoers for trespass violated the Fourth Amendment, relying in part on the reasoning in a dissent from Kavanaugh.
Two cases have drawn most of the attention dedicated to Kavanaugh's Fourth Amendment views.
United States v. Jones was like Wesby in that the Supreme Court ended up taking up Kavanaugh's view. Jones (which came before the D.C. Circuit as U.S. v. Maynard) concerned whether or not police placing a GPS tracker on a suspect's car constituted a search for which a warrant was required. Kavanaugh disagreed with the D.C.-Circuit majority's opinion, which was that the GPS surveillance "became" a search over time. Some have argued that this may put him at odds with a Supreme Court whose surveillance jurisprudence is expanding.
Ed Whelan, president of the Ethics and Public Policy Center and a Kavanaugh booster, has argued that this isn't the right reading of Kavanaugh's view. Rather, Kavanaugh's brief dissent claims that while the use of a GPS tracker may not have constituted a search, the actual installation of the tracker may have. This view, Kerr noted in his own analysis, was more or less the view the Supreme Court's majority adopted when it took up Jones.
Kavanaugh has also drawn attention for his opinion in Klayman v. Obama, a 2015 case that challenged the constitutionality of the National Security Agency's bulk telephony metadata collection program, responsible for the collection of the call records—although not contents—of millions of Americans. Kavanaugh backed the constitutionality of the NSA's surveillance in a two-page concurrence to a denial of rehearing in Klayman.
Kavanaugh wrote first that the NSA's data collection was valid under the third-party doctrine, which says that individuals do not have a Fourth Amendment expectation of privacy for data pertaining to them preserved by a third party, like bank records or—in the case of the NSA—information about phone calls. This argument was consistent with Kavanaugh's required deference to Supreme Court doctrine.
However, he went beyond the third-party doctrine in arguing that the NSA's surveillance would still be licit even if SCOTUS were to dump the third-party doctrine at a future date. This stipulation takes on new significance because Carpenter may have placed an upper bound on the third-party doctrine, stipulating that police must obtain a warrant before collecting sustained cellphone location data.
Bulk metadata collection under section 215 would still hold up, Kavanaugh argued in Klayman, because a substantive interest of national security, preventing terrorism, outweighs the privacy concerns raised by the NSA's surveillance.
"The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient ‘special need'—that is, a need beyond the normal need for law enforcement—that outweighs the intrusion on individual liberty," Kavanaugh wrote. "The Government's program for bulk collection of telephony metadata serves a critically important special need—preventing terrorist attacks on the United States."
Whelan has contended that Kavanaugh was merely following precedent here, too. Even if he was, this stance is music to the ears of national security hawks, who consider surveillance a vital component of the war on terror. And for civil libertarians like Paul—who once spent ten hours filibustering the renewal of part of the Patriot Act—Kavanaugh's views represent a major and unwarranted intrusion into Americans' private lives.
Paul is slated to meet with Kavanaugh on Tuesday. Kavanaugh's limited record suggests that he tends to disagree with Paul when it comes to balancing privacy rights against vital national security and public safety concerns. It is likely that this point of disagreement will be central to the two men's meeting and Kavanaugh's confirmation.