Brett Kavanaugh and the Fourth Amendment

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Brett Kavanaugh and the Fourth Amendment by Jason Moore

In the midst of Supreme Court Justice Anthony Kennedy’s retirement, a fervor was awakened in the cultural discourse concerning Trump’s next nominee. The President has previously surrounded himself with those who mirror his ardent Republican ideals, so many surmised that the new replacement candidate would follow this pattern. A pick of this type would skew the Supreme Court’s decisions heavily towards the right end of the political spectrum for possibly decades to come, and, let’s face it – the right has not had the best track record recently when it comes to the Fourth Amendment. Challenges to Civil Asset Forfeiture, mass data collection, and illegal detainment of citizens both home and abroad are regularly met with the misguided zeal and reasoning that agents of the State are able to periodically operate outside the bounds of the Constitution in the inexhaustible search for “the bad guys”, and “keeping America safe”, justifying the ends in a flippant dismissal of individual rights. This type of bias ignores the obvious fact that many innocent Americans are stripped of their Fourth Amendment rights on a daily basis, and that many police and FBI agents are abusing their power to serve both personal and professional interests. (1) (2)

Brett Kavanaugh’s record mirrors these feverish exclamations, and should not be lauded by those who uphold the Constitution as a beacon of individual liberty.

Kavanaugh was most notably involved in the Clinton scandal, as Associate Counsel in the Office of Independent Counsel, and a key author of the Starr Report. As his career progressed through multiple Presidential Administrations, his jurisprudence leaned heavily towards the right, so much that even his nomination to the U.S. Court of Appeals for the District of Columbia was hampered by concerns of his obvious partisan behavior.

While Mr. Kavanaugh has expressed the importance of following “stare decisis”(a fancy word for “precedent”), concerning the Roe V. Wade decision, he conveniently dismissed a previous decision stemming from a 1971 Supreme Court ruling establishing the “Bivens claim”, which allowed American citizens to seek monetary damages for violations of the Fourth Amendment, when heading a 2015 case against Mr. Amir Mohamed Meshal, an American Citizen who alleged that he was unlawfully detained and tortured overseas by FBI agents. Mr. Kavanaugh claimed that the Bivens claim did not apply to Mr. Meshal’s case, specifically citing a need for “national security”. (3) His disregard of Constitutional rights in the oft-cited name of “public safety” or “national security” does not stop there. Kavanaugh also justified the mass collection of data under the controversial NSA surveillance program as a “special need” in the fight against terrorism, and did not constitute a legal search (4). Both of these decisions have only emboldened the police state, and have given those who swore to defend the Constitution carte blanche to act recklessly against its citizens under the guise of safety and security.

As the Federal Government continues to impede on the lives of everyday citizens, we need a Supreme Court pick with an intention to support the right against illegal search and seizure, not another partisan Republican who blindly defends the injustices wrought by agents of the state.


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