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Open Questions: Brett Kavanaugh and Criminal Justice

Kavanaugh’s record is sparse, but that makes understanding his stance on the issues all the more important.

  • Priya Raghavan
July 26, 2018

Brett Kavanaugh’s Supreme Court nomin­a­tion is troub­ling on many fronts: He appears to want the pres­id­ent to be above the law, he would likely curtail abor­tion rights, and he’d almost certainly block mean­ing­ful gun control. But we know much less about Kavanaugh’s views on crim­inal justice. How the nominee would shape the Court’s crim­inal juris­pru­dence in many ways remains a mystery.

Kavanaugh serves on the Court of Appeals for the D.C. Circuit, which spends much of its time review­ing federal govern­ment admin­is­trat­ive actions and less time decid­ing crim­inal justice matters. As a result, his crim­inal justice decisions are few, and there are large swaths of the crim­inal law that Kavanaugh simply hasn’t publicly contem­plated. 

However, one thing is clear: Based on Kavanaugh’s limited crim­inal juris­pru­dence, there is no indic­a­tion that Kavanaugh falls to the left of Kennedy on any aspect of crim­inal justice.

For instance, Kavanaugh has a rather limited view of the Fourth Amend­ment, the consti­tu­tional provi­sion that protects against illegal searches and seizures. In U.S. v. Jones, Kavanaugh dissen­ted from the D.C. Circuit’s major­ity ruling that the govern­ment’s warrant­less use of a GPS device to track the defend­ant’s public move­ments amoun­ted to an illegal search. He argued that the defend­ant had no reas­on­able expect­a­tion of privacy while driv­ing a car on a public thor­ough­fare and that, there­fore, track­ing the defend­ant by GPS was perfectly legal. Kavanaugh noted that he was, however, troubled by the install­a­tion of the GPS on the defend­ant’s car, and, on appeal, the Supreme Court unan­im­ously ruled that the defend­ant’s rights had been viol­ated based on the install­a­tion of the GPS. But, five of the Supreme Court justices saw what Kavanaugh didn’t: GPS track­ing raised seri­ous privacy concerns. 

Notably, the Supreme Court recently took up this privacy issue, unre­solved in Jones, in Carpenter v. U.S., decid­ing that acquir­ing cell phone loca­tion data — similar to GPS track­ing inform­a­tion — amounts to an illegal search. The Supreme Court is likely to confront issues like these frequently in the years to come.

In U.S. v. Askew, another Fourth Amend­ment search case, Kavanaugh again broke with his colleagues, dissent­ing from the major­ity’s conclu­sion that a defend­ant’s Fourth Amend­ment rights were viol­ated when police unzipped and opened his jacket after a stop-and-frisk found noth­ing suspi­cious. Kavanaugh argued that the officers were within their rights to unzip and open the defend­ant’s jacket to ensure officer safety, after the original frisk yiel­ded noth­ing, and, altern­at­ively, to help facil­it­ate a witness iden­ti­fic­a­tion — despite the major­ity explain­ing that there was no preced­ent for such a justi­fic­a­tion.  

These decisions, while admit­tedly a small sample, nonethe­less raise the concern that Kavanaugh could put few curbs on police power.

The rare instances when Kavanaugh sides with defend­ants are equally telling. In U.S. v. Burwell, Kavanaugh dissen­ted from a decision that upheld a 20-year sentence enhance­ment for a defend­ant who used a machine gun during a robbery. Kavanaugh argued that there was no proof that the defend­ant knew the gun he used was a machine gun and that the law should require such proof. But this does­n’t neces­sar­ily mean that Kavanaugh was look­ing out for the little guy. Insist­ing on such intent require­ments — mens rea, in legal termin­o­logy — could make it harder for the govern­ment to prosec­ute white-collar crim­in­als, largely bene­fit­ting a small segment of afflu­ent defend­ants. 

Kavanaugh’s views on senten­cing are more diffi­cult to parse. He test­i­fied in 2009 that, from a policy perspect­ive, he believed federal senten­cing guidelines should be mandat­ory, rather than advis­ory, to limit judi­cial discre­tion in senten­cing. He was concerned that advis­ory guidelines would allow judges to impose their personal views at senten­cing, lead­ing to dispar­ate outcomes. But Kavanaugh has on several occa­sions disagreed with his colleagues and suppor­ted lower court judges who gave harsh, above-guidelines sentences with little to no explan­a­tion of their reas­ons for doing so. In both In re Sealed Case and the recent U.S. v. Brown, where the D.C. Circuit vacated sentences after judges issued harsh, above-guidelines sentences without suffi­cient explan­a­tion, Kavanaugh dissen­ted, call­ing the major­ity’s hold­ing in the latter case “confound­ing.” Kavanaugh’s state­ments on senten­cing leave us wonder­ing: how much discre­tion does he think judges should have? 

Kavanaugh has had little chance to opine on those subjects that comprise the hall­marks of Kennedy’s crim­inal justice legacy, such as the death penalty, juven­ile justice, and prison over­crowding. But it seems unlikely that Kavanaugh will follow his old boss’ lead, espe­cially given his align­ment with his “first judi­cial hero” William Rehnquist, whose far-right views on many issues, includ­ing crim­inal justice, fell well outside the main­stream. 

To be sure, conser­vat­ives do not always side with law enforce­ment. Kavanaugh’s high school class­mate and Kennedy clerk colleague, Justice Neil Gorsuch, recently sided with the defend­ant in Sessions v. Dimaya, a major ruling that found parts of the immig­ra­tion law uncon­sti­tu­tion­ally vague. Kavanaugh could surprise us, too. 

Crim­inal cases comprise a size­able portion of the Supreme Court’s docket, and the opin­ions from them can rever­ber­ate down to every encounter with police, as happened with the Miranda warn­ing. As just one example, this fall the Court will hear Timbs v. Indi­ana and decide whether the Eighth Amend­ment prohib­i­tion against excess­ive fines applies to the states, effect­ively determ­in­ing how much crim­inal defend­ants can be fined. 

Before he is confirmed, the Senate — and the Amer­ican people — must have a better sense of Kavanaugh’s think­ing about crim­inal justice.  

 During his confirm­a­tion hear­ings, Senat­ors should ask — and Kavanaugh should answer with specif­ics — the follow­ing ques­tions: 

  • Given the stark racial dispar­it­ies in the crim­inal justice system, how would he ensure equal­ity under the law?
  • Does he believe that the mean­ing of the Consti­tu­tion, specific­ally the Eighth Amend­ment prohib­i­tion against cruel and unusual punish­ment, can change over time? 
  • What is his stance on solit­ary confine­ment?
  • What are the limits of police power?
  • What are his beliefs about mandat­ory minim­ums and judi­cial discre­tion in senten­cing?
  • Does he believe that fines and fees levied on crim­inal defend­ants should be limited?

(Image: Alex­an­der Kirch/Shut­ter­