Judge Kavanaugh on the Fourth Amendment

Orin S. Kerr is the Frances R. and John J. Duggan Distinguished Professor of Law at the University of Southern California Gould School of Law. Judge Brett Kavanaugh’s views of the Fourth Amendment have drawn significant interest following his recent nomination to the Supreme Court. This post takes a close look at Kavanaugh’s key Fourth Amendment opinions. It does so with an eye to guessing how he might rule in search and seizure cases if he is confirmed to the Supreme Court. The Supreme Court has a large Fourth Amendment docket. How might a Justice Kavanaugh approach those cases? My analysis is tentative for two reasons. The first is probably obvious. Circuit judges are supposed to follow Supreme Court and circuit precedent, while Supreme Court justices have much more room to roam. Given that, translation is hard. You never know how much of a circuit judge’s rulings simply reflect a lower court judge’s commitment to stare decisis. A second reason for…

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