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That's not what he actually said though. He said: >Even if the bulk collection of telephony metadata constitutes a search, the Forth Amendment does not bar all
by AmericanChopper 8y ago
That's not what he actually said though. He said:
>Even if the bulk collection of telephony metadata constitutes a search, the Forth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law.
He's clearly just enforcing the precedent set by the Supreme Court. When asked whether he'd have written the same thing if the case had occurred after Carpenter vs United States, he answered:
>"Do you think if Carpenter had been decided you would have written the concurrence you did in Klayman?" Leahy asked.
>"I don't see how I could have," Kavanaugh said.
If this one case is all you really need to know about Kavanaugh, then you may as well know the truth rather than a misunderstanding you took away from a single line of news article.
>though judges have, contrary to your opinion, some latitude
This is true, judges have enormous latitude to rule any way they see fit, there are a number of well known 'activist' judges serving today. However good judges understand that they're not legislators and try to enforce the law as accurately as possible.
- charleslmunger 8y agoYes, but the question we care about here is if we'd get a privacy preserving decision like Carpenter if Kavanaugh was on the court. I read that section of his opinion, and it certainly seems like the answer is "no".
- AmericanChopper 8y agoThere is no way to read "no" from the opinion written by Kavanaugh, as it exclusively references standing precedent. As far as I'm aware, Kavanaugh has not delivered any opinions of his own that would suggest he is hostile to 4th amendment protections. Given his reputation as strong constitutionalist, I think if you want to make that accusation, then you should have something more than a simple interpretation of Supreme Court case law.
- charleslmunger 8y agoThis article [1], from a source that is generally quite positive on Kavanaugh, provides much more evidence of a trend in Kavanaugh's interpretation of the 4th amendment from his previous cases. That's what originally informed my opinion. [1] https://reason.com/archives/2018/07/18/brett-kavanaughs-fourth-amendment-blind https://reason.com/archives/2018/07/18/brett-kavanaughs-four...
- Lazare 8y ago> I read that section of his opinion, and it certainly seems like the answer is "no". I don't think you understood what you were reading then. You can't just naively analyse someone applying rules other people wrote, and see any strong evidence in what rules he would write given the opportunity. In some cases (but not this one) a judge will write a side note explaining his thoughts, and even asking for the rules to be changed. But here, we just have someone saying "the Supreme Court said X must lead to Y, and this looks a lot like X, and thus it must lead to Y". The most you can gain from that is an understanding of how he interprets X; you can't learn anything about whether he thinks Y ought to follow X.
- charleslmunger 8y agoSee my other comment: https://news.ycombinator.com/item?id=17949047 https://news.ycombinator.com/item?id=17949047