When the Supreme Court first encountered the internet, the justices expressed wonder at its potential. “It is ‘no exaggeration to conclude that the content on the Internet is as diverse as human thought,’” marveled Justice John Paul Stevens, then the court’s oldest member. The court decided that, unlike the more regulated television and broadcast media, this “‘unique and wholly new medium of worldwide human communication” was entitled to full First Amendment protection.
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During the fourth day of hearings on Judge Brett Kavanaugh's nomination to the Supreme Court, two experts testified on matters that may be of interest to Lawfare readers. Rebecca Ingber, associate professor at Boston University School of Law and contributing editor for Lawfare, testified about Judge Kavanaugh's approaches to executive deference on national security matters and to international law.
A kerfuffle erupted in the Senate Judiciary Committee on Tuesday over the committee’s access to a series of documents from Supreme Court nominee Brett Kavanaugh’s time in the Bush White House. The conflict concerned the withholding of material under an implied assertion of executive privilege and the relevance of the documents in question. There are a few different caches of documents and different reasons why senators do not have access to them.
The Senate Judiciary Committee is scheduled to begin hearings Sept. 4 on the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court. If confirmed, Kavanaugh would replace the high court’s most frequent swing vote, retiring Justice Anthony Kennedy, a change that many expect would shift the court significantly to the right.
Brett Kavanaugh's Failure to Acknowledge the Changes in Communications Technology: The Implications for Privacy
Facebook became available to the general public in 2006; Apple's smartphone was announced the following year. In little over a decade, the devices, and the communications they engender, have become ubiquitous. Fully 95 percent of Americans own cell phones; 77 percent, smartphones. We carry mobile devices everywhere, using them to carry out a multitude of tasks.
In considering Judge Brett Kavanaugh’s Supreme Court nomination, there are many important unknowns, including how he would treat court precedents regarding such hot topics as same-sex marriage and abortion. In regard to national security and foreign affairs, however, there is little such ambiguity. Kavanaugh has a long, established track record on such matters—generally viewing them as issues for Congress and the executive, not the judiciary, to decide. A recurring theme across numerous Kavanaugh opinions is that a court cannot freelance on such matters.
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?
Even if it’s a bit surprising that he said the quiet part out loud, it shouldn’t come as any great shock that Judge Brett Kavanaugh thinks the Supreme Court’s 1988 decision in Morrison v. Olson is wrongly decided—and is his best example of a prior decision that should be overruled.
Twenty years ago, Brett Kavanaugh and I were on the team that drafted Kenneth Starr’s impeachment referral. Here’s what the Supreme Court nominee did and did not do.
As Jack noted earlier this morning, Lawfare's Alex Loomis has a fascinating new paper up on SSRN (for the moment, anyway) about the scope of Congress's Article I power to "define and punish . . .