Lacking the mad skillz of Yale law students to know with absolute certainty that the confirmation of Brett Kavanaugh for the Supreme Court means “people will die,” it seemed prudent to consider what Judge Kavanaugh had actually said or written in the past rather than to assume he would reverse Roe v. Wade on the first Monday in October.
This will come as a shock to some people, but the Court deals with issues other than abortion. One such issue is criminal law, and for those of us who practice criminal defense, it’s kind of important too.
I, for one, am not surprised that Trump didn’t nominate the progeny of Thurgood Marshall, or William O. Douglas, or even Earl Warren (although he may have, but time will tell) to the Court. Why would he? Then again, neither did President Obama, whose final nominee, Merrick Garland, was more likely to sit at Sam Alito’s lunch table than Sonia Sotomayor’s.
So how is Judge Kavanaugh’s record on crim law? David Oscar Markus runs through some hot button issues at his Southern District of Florida blog.
Acquitted Conduct. Many people, lawyers and non-lawyers alike, are shocked that sentencing judges are permitted to use acquitted conduct in fashioning a federal sentence. Kavanaugh wrote about the practice here in a thoughtful concurrence (in denying en banc review) shortly after Blakely and Booker. He said that although the law currently permits it, district judges have the discretion NOT to use acquitted conduct and his advice is that they should NOT use it at sentencing.
The use of relevant conduct in general, and acquitted conduct in particular, is a huge issue, an outrageous issue. After all, being sentenced for a crime for which you’ve been acquitted is one of the most bizarre twists of federal practice imaginable. Kavanaugh cautions against it.
Jury Instructions. Here, Kavanaugh writes a concurrence in a case that overturns a murder conviction because of faulty jury instructions. He explains that even though the crime is “heinous,” the “vote to reverse Williams’ murder conviction is not a hard call” because the jury was not instructed properly on mens rea.
There are really two issues here, the first being respect for instructions that don’t direct the jury to convict, and the second being that even defendants convicted of “heinous” crimes deserve the benefit of the law.
But it’s not all roses. Kavanaugh was untroubled by an unexplained above-guidelines sentence, and appears to have no problem with the Third-Party Doctrine despite it’s impact on the digital world, where everything is in the hands of third parties.
And then there’s the Exclusionary Rule. He was, based on a speech he gave, a huge fan of William Rehnquist, who was no fan of criminal defendants.
He “fervently believed the Supreme Court had taken a wrong turn in the 1960s and 1970s… in a number of sweeping rulings of the Warren Court” that expanded rights for criminal defendants, Kavanaugh said. He cited as examples the 1961 decision in Mapp vs. Ohio, which called for excluding evidence that arose from an illegal search, and the 1966 decision in Miranda vs. Arizona, which said police must warn suspects of their right to remain silent and to consult with a lawyer.
“Perhaps his most vehement objection… concerned the exclusionary rule,” Kavanaugh said. “This judge-created rule, in Rehnquist’s view, was beyond the four corners of the 4th Amendment’s text and imposed tremendous costs on society.” He did not succeed in overruling it, Kavanaugh noted, and not many are calling for a change today, “given its firmly entrenched position in American law.”
This is a huge issue, in the sense that absent the exclusionary rule, controversial at the time of its establishment, there would be no viable remedy for a Fourth Amendment violation. As Judge Cardozo famously complained in 1926, “The criminal is to go free because the constable has blundered.” But what are the chances that the Supreme Court, with Judge Kavanaugh on board, will reverse the Exclusionary Rule? The doctrine of stare decisis is institutionally strong here, with more than a century of caselaw behind the Exclusionary Rule.
He might not be its friend, but it’s inconceivable that the Supreme Court will so fundamentally shift the Fourth Amendment remedy to Bivens or § 1983 (assuming states would go along for the ride). This is where the institutional defender of the Court, Chief Justice John Roberts, does his voodoo to assure that the integrity of the Court isn’t undermined by wild shifts in jurisprudence. The Exclusionary Rule might not be a Kavanaugh fav, but there must be some remedy for a violation of a constitutional right, and this is the one the Supreme Court chose a century ago.
Does this mean Judge Kavanaugh is a friend to criminal defense? No. Don’t be ridiculous. But why would anyone suspect that Trump would nominate a criminal law reformer to SCOTUS? That’s where the delusional argument comes into play, that any rational person would expect to get the dream criminal reform justice from this president. It’s crazy talk.
But the flip side is that Judge Kavanaugh’s nomination is hardly the end of the world for criminal law either. Even though criminal defense lawyers largely hated Nino Scalia, he had some big moments, like Crawford, where his textual reading of the Constitution worked to our benefit. There is strong reason to believe that Judge Kavanaugh will be similarly disposed to some positions favoring the defense, even if he will also have some bad takes as well.
More to the point, given the nature of the chief executive, we could have done a whole lot worse than Brett Kavanaugh as a Supreme Court nominee. After all, Trump could have nominated
Jeanine Pirro Merrick Garland.