(The Federalist) -- While Brett Kavanaugh’s nomination to the Supreme Court has been warmly received on the Right, libertarians haven’t been uniformly thrilled. The night of the announcement, Rep. Justin Amash (R-MI) tweeted that it was a “[d]isappointing pick, particularly with respect to his #4thAmendment record,” also mentioning “government surveillance” as an area where Americans can’t afford a “rubber stamp.”
A few days later, my Cato Institute colleague Matthew Feeney did a critical dive into Klayman v. Obama, where the U.S. Court of Appeals for the DC Circuit rejected on standing grounds a 2015 challenge to the National Security Agency’s telephony-metadata collection. Kavanaugh wrote separately to say the program passed constitutional muster regardless. Reason’s Jacob Sullum similarly identified Kavanaugh’s “Fourth Amendment blind spot” (while lauding other aspects of his jurisprudence).
But should this be that big a worry? Given that the bulk of Kavanaugh’s legal opinions, as well as his speeches and academic writings, apply constitutional structure and push back on the administrative state—the bread-and-butter of the DC Circuit’s docket—should we really extrapolate from one squib of a concurring opinion to make Kavanaugh out to be some knee-jerk statist? After all, he isn’t some reflexive pro-government judge like Merrick Garland.
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