Searching for Alex Kozinski: the controversial 9th Circuit judge on free speech, privacy, and why he didn't mind the Kelo decision

Reason, July, 2006 by Shikha Dalmia

Kozinski: Well, they had done that before in Buckley v. Valeo [a 1976 ruling that upheld campaign finance laws]. I was disappointed they didn't cut back on Buckley, but they're not perfect. By and large, they've been pretty effective on free speech. We have some Supreme Court justices, such as Justice Kennedy, who are very protective of free speech. He usually picks up a majority. It doesn't mean that I wouldn't go farther in some areas.

reason: The 9th Circuit has granted an en banc hearing to a Hawaii case that challenges the right of a private school to offer preferential admissions and scholarships to native Hawaiian kids in essence banning even private uses of preferences. Where do you stand on racial preferences

Kozinski: It's a very tough issue, just as the subject of prayer in public schools is difficult. When you have a limited role for government, then these kinds of issues go away. If you don't have a public school system, you don't have to worry about prayer in public schools. The whole idea of separation of church and state does not come up. When you force people together in a public school system, you get some benefits in that people meet others who are different from themselves. On the other hand, you have children spending a big chunk of their time growing up under the control of teachers, who are government officials. They teach morals in areas such as religion, homosexuality, premarital sex, and drug use that are different from what parents wish to teach.

We have laws against discrimination, and we have to enforce the laws. By and large, if private parties want to use racial preferences, it probably should be OK. Whether it's OK under our laws, I don't know. But in this country there is a history of discrimination. So I certainly don't see any problem with any private party wanting to correct for that.

reason: So are you making a distinction between benevolent and nonbenevolent uses of preferences by private parties?

Kozinski: I am tempted to do that, although sometimes it's hard to know what's benevolent and what's not. What's benevolent for one isn't benevolent for the other. It's a zero-sum game.

There are certain things individuals should be able to do with their own property that the state is not entitled to do. But we have constitutional protections, we have federal laws, we have state laws. It gets very difficult to navigate these things. We don't live in an essentially libertarian society.

reason: You had an interesting debate at the Cato Unbound Web site with Nobel Prize-winning economist James Buchanan recently where you said that you have a romantic attachment to the utopia of minimal government. But you also said this vision would not have allowed the goals of the New Deal and the Progressive Era to be fulfilled, and that you weren't sure if that would be a good outcome. Have you rethought your commitment to minimal government?

Kozinski: It's something to strive for, and by and large we ought to look for ways of minimizing governmental power. At the same time, we ought to realize that we are doing very well as a country. The libertarian assumption is that if we somehow undid the New Deal, we'd be even better off today. I don't know if that's the case. If you study the attitude of people during the Depression era, they expected government to solve their problems. And this was before the welfare state, when people were more rugged individualists. If the New Deal hadn't happened, there may have been worse social disruption.