Open Questions: Brett Kavanaugh and Criminal Justice

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/Shutterstock.com)