The appointment of a Supreme Court associate justice can affect a myriad of government policies — federal, state, and local. And today’s Supreme Court is precariously balanced. It includes justices who would use the court’s power to reinterpret the Constitution to advance the cause of “social justice” as they see it, and justices who view their job as to determine the constitutionality of laws based on the doctrine of the original drafters.
Judge Brett Kavanaugh has been appointed to fill the seat of retiring Justice Anthony Kennedy, a man who was the quintessential swing vote. Several of Kennedy’s opinions were supportive of the four justices that leaned towards strict interpretation of the Constitution, while others favored the four Justices who supported the “living” Constitution concept. Positive thinking among conservatives is that Kavanaugh would not dance between left and right; that he would support a strict interpretation of the Constitution.
The best source of information on his likely approach can be found in his previous written opinions as a member of the District of Columbia Federal Circuit Court.
One of the most pressing issues is that of property rights. The inheritance or death tax, by federal mandate, seizes up to 40 percent of a person’s wealth upon their death, and it is a prime example of unfair property seizure. Kavanaugh has not specifically had the opportunity to opine on the Death Tax as of yet, but he has had an opportunity to explain his views and interpretation of the law on property rights — most notably in the case relating to the Fourth Amendment’s ban on unlawful searches and seizures.
[Brett Kavanaugh: ‘I am a pro-law judge’]
In Jones v. U.S., the Supreme Court endorsed an interpretation of the Constitution originally made by Kavanaugh when the case went before his lower D.C. Circuit Court.
The case involved the issue of whether or not a GPS tracking device could be put on a suspect’s car without a search warrant. Kavanaugh dissented from the D.C. Circuit Court’s decision, arguing that investigators in the case violated not only the right to privacy with an illegal search, but also the property right of a suspect’s personal effects. Kavanaugh defended the car-owner’s right to use his property privately, and wrote that by imposing the tracking device, the government violated his property rights without due process.
When the case went before the Supreme Court, Jones specifically asked that the court look at the issue from a “property-based Fourth Amendment argument.” He cited Judge Kavanaugh’s argument that the Fourth Amendment, “protects property as well as privacy.” In the oral arguments before the Supreme Court then Justice Antonin Scalia stated, “when that [GPS] device is installed against the will of the owner of the car, that is unquestionably a trespass and thereby rendering the owner of the car not secure in his effects — the car is one of his effects — against an unreasonable search and seizure.”
Scalia was chosen to write the Supreme Court’s decision and he elaborated on the property rights protection in the Fourth Amendment: “[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbor’s close without his leave; if he does he is a trespasser, though he does not damage at all; if he will tread upon his neighbor’s ground, he must justify it by law.”
Constitutional scholars William J. Olson and Herbert H. Titus observe: “The Fourth Amendment pronounces that ‘persons,’ ‘houses,’ ‘papers’ and ‘effects’ are equally secured from unreasonable searches and seizures. Each is a right of the people best protected by the enduring, unchanging common law rules of private property, not by a modern privacy chameleon invested by judges.”
Kavanaugh’s defense of property rights and his previous influence on the Supreme Court bode well, should he be confirmed as an associate justice.
Dick Patten is the president of the American Business Defense Council, which represents family businesses, family farms and ranches, throughout the nation.
