EDITOR’S NOTE: Now that President Trump has announced his pick of Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the U.S. Supreme Court, we wanted to take a quick look at how Kavanaugh, who has served on the U.S. Court of Appeals for the D.C. Circuit since 2006, might affect criminal justice issues if he is confirmed to serve on the nation’s highest court.
One of the criminal justice topics on which Kavanaugh’s record is the least ambiguous, is his strongly conservative take on the Second Amendment, along with his consistently unfriendly views toward gun regulation.
To choose just one example, Kavanaugh was the dissenting vote in a 2011 D.C Circuit decision when a three-judge panel upheld the District of Columbia’s ban on semi-automatic rifles and its requirement that all guns be registered. Kavanaugh found the new D.C. law to be quite out of step with the landmark 2008 case District of Columbia v. Heller.
“In District of Columbia v. Heller,” Kavanaugh wrote in his dissent, the Supreme Court held that the Second Amendment confers “an individual right to keep and bear arms.”
Also, according to Heller, he wrote, “the Supreme Court held that handguns – the vast majority of which today are semi-automatic – are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi- automatic rifles,” and many more words to that effect.
Thus, said Kavanaugh, “in my judgment, both D.C.’s ban on semi-automatic rifles and its gun registration requirement are unconstitutional under Heller.”
As some of the legal experts note below, opinions of this nature could present a significant problem for states like California, which have strong gun regulations.
Yet, while the new candidate for SCOTUS appears to have an expansive interpretation of the Second Amendment, as Jacob Sullum pointed out a few days ago in Reason Magazine, in most instances, Kavanaugh appears not to have the same broad view of Fourth Amendment rights.
For example, in 2010 he was one of the dissenting votes on the topic of whether to rehear a case en banc at the D.C. Circuit, after a three-judge panel had ruled that police violated a suspected drug dealer’s Fourth Amendment rights when they attached GPS surveillance device to his car, without a warrant, and thus tracked the guy for a month. Kavanaugh wrote that he wasn’t so sure that the “police’s mere touching or manipulating of the outside of one’s car is a ‘physical encroachment within a constitutionally protected area.’”
(As it happened, in early 2012, the U.S. Supreme Court sided with the plaintiff that the warrant-free secret GPS tracking constituted an unconstitutional warrantless search.)
Yet, Kavanaugh is complicated. In 2012, he wrote a strong majority opinion that overturned a military commission’s conviction of Salim Hamdan for “providing material support to terrorism,” which was not a war crime at the time he was engaged in the behavior. (Hamdan had admitted to being Osama bin Laden’s driver and bodyguard.)
But then there is Judge Kavanaugh’s disturbing minority opinion in the recent case of Garza v. Hargan, in which he sided with the Trump Administration and against an undocumented 17-year-old who was desperately trying to get an abortion in Texas where she was staying in a government shelter, while federal officials repeatedly obstructed her actions in a multiplicity of ways.
Any new addition to the U.S. Supreme Court has the opportunity to influence a list of important criminal justice issues that have been at the center of national debate for decades—–as well as some crucial emerging ones. With this topic in mind, while waiting for President Trump to announce his pick to replace Justice Kennedy, journalist Elena Schwartz, who is a news intern at The Crime Report, spoke with legal experts and scholars around the country to get their assessments, of the way the president’s likely pics—Judge Kavanaugh included—could affect existing justice reforms, and those that will likely face the high court in the future.
Here’s what she learned:
The President’s New U.S. Supreme Court Choice Will Affect a Broad Array of Justice Issues Say Experts
by Elena Schwartz
First let’s talk about gun rights, and gun regulation.
The Court has taken up relatively few gun cases, but judging from its rulings so far, a conservative-leaning nominee is likely to shift the majority towards a broad reading of the Second Amendment.
A nominee who is a “a very strong proponent of vigorous gun rights” makes it likelier that the Court will hear more cases that address the scope of permissible gun control, said Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law School.
Three current justices—Clarence Thomas, Neil Gorsuch and Samuel Alito—have unsuccessfully sought to rule on more Second Amendment cases in the past. But with an amenable Trump nominee on the bench, the group would satisfy the “rule of four,” which permits four of the nine justices to grant a writ of certiorari, and would be able to add gun control cases to the docket.
One issue that the Court has left open is whether the right to bear arms extends outside the home. Barnett and Adam Winkler, a law professor at UCLA, had little doubt that the nominee would vote against gun control measures in such cases.
“It’s safe to say that whoever is replacing Justice Kennedy is going to be very supportive of the individual right to keep and bear arms,” Barnett said.
Winkler said that the Court will soon be asked to rule on discretionary permits for concealed carry, which limit who may carry a concealed weapon in public, and on the lawfulness of bans on military-style rifles.
He predicted that the Trump nominee would vote against both measures.
If discretionary permitting were struck down, it would have a significant impact on large cities such as New York and Los Angeles, where concealed carry is under stringent restrictions.
“It would mean that a city like Los Angeles would go from about 500 people with permits to carry guns to 300,000 people with permits to carry guns,” Winkler said.
Whether a majority of justices would favor such a ruling is unclear.
“We don’t really know what Chief Justice [John] Roberts thinks about many of these issues,” said Winkler. “But Roberts has been a reliable vote in favor of a broad reading of the Second Amendment that grants an individual right in previous cases.”
The Concealed Carry Reciprocity Act (CCRA), which is currently awaiting a vote in the Senate and would force states to honor the concealed-carry permits, or lack of permitting, of any other state, will lend deeper insight into the Trump nominee’s jurisprudence if it is voted into law and taken to the Court.
“I think the CCRA would put a Trump nominee somewhat in the crosshairs,” said Winkler. “On the one hand, it’s someone who’s probably a strong proponent of gun rights. On the other hand, it’s someone who’s likely to be an opponent of expansive federal power.”
“It’s just not certain how a Supreme Court justice would vote.”
Searches and seizures
Tracey Maclin, a law professor at Boston University School of Law, expressed concern that the confirmation of Trump’s nominee might put in peril the exclusionary rule, which makes all evidence obtained by searches and seizures that violate the Fourth Amendment inadmissible in court.
Though Kennedy himself was no supporter of Mapp v. Ohio (1961), the case which applied the exclusionary rule to the states, Maclin worried that the political leanings of the new nominee, whom he was confident would oppose the exclusionary rule, might signal to prosecutors that Mapp is prime to be overturned.
“It wouldn’t surprise me if prosecutors start making arguments that Mapp should be reconsidered or Mapp should be overruled,” he said. “This would be a momentous issue. And I think there are already five votes.”
Maclin said that overruling Mapp would give law enforcement officers implicit permission to violate the Constitution in order to collect evidence.
“If you look at prior to Mapp, prior to 1961, sure, the Constitution applied to state police officers, but they were like, ‘Who cares? The evidence is coming in anyway, so we’ll do what we want to do,’” he said.
“Do we want the Court to announce rules that will incentivize police to follow the Constitution, or don’t we care about the Fourth Amendment? That’s something that could be very much on the horizon, and if it does arise, it’s going to be a big deal.”
On questions of surveillance, the new justice’s stance is more difficult to predict, according to Daniel Epps, associate professor of law at Washington University Law School.
“It’s possible that the new justice could look more like the late Justice Antonin Scalia, who was very deferential to government interests in the criminal sphere almost across the board,” he said. “If it’s someone like that, then unquestionably the justice will be more tolerant of government surveillance and things like that than Justice Kennedy was.”
A stauncher originalist in the mold of Justice Gorsuch, however, might be more likely to curtail surveillance in the name of privacy.
Sentencing and the death penalty
Trump’s nominee will likely be less receptive to Eighth Amendment challenges to harsh sentencing and the death penalty than Kennedy was.
According to Brandon Garrett, the L. Neil Williams, Jr. Professor of Law at Duke University School of Law, Kennedy’s retirement represents a missed opportunity in terms of limiting acceptable forms of punishment.
During his tenure, Kennedy spoke out in favor of dignitary concerns—specifically, redefining rights to protect the “dignity” of persons or groups— on multiple occasions. He concurred in multiple rulings limiting the scope of the death penalty, as well as a case that granted sentencing reductions after federal sentencing guidelines changed.
“On those issues involving mass incarceration, life without parole, solitary, Kennedy was a really important voice, and there is no comparable voice on the court right now,” Garrett said.
“It’s a safe assumption that no new appointee is going to come before Congress in the confirmation hearing and say, ‘Yes, I agree with Justice Kennedy that the death penalty stands on shaky ground today in this country,’” he said.
“I just can’t imagine a Trump appointee saying that.”
The new justice will have opportunity to rule on an Eighth Amendment question in Timbs v. Indiana, an upcoming case that will resolve whether the clause of the Eighth Amendment banning excessive fines governs the states as well as the federal government.
According to Washington University’s Daniel Epps, with the appointment of a Trump nominee, the Supreme Court would more frequently strike down court-mandated prison reform.
Garrett, however, had less confidence in the nominee’s potential to help or harm that cause.
“I think most of what is happening in prison reform and happening in criminal justice reform is happening at the state and local levels,” he said. “The Supreme Court has not been that relevant to many of the changes that have occurred in our criminal justice system.”
“The people who are changing the ways that prisons are run are at the local and state level, and if the Supreme Court doesn’t take the lead on some of these important criminal justice issues, then others will, and have.”
A number of upcoming cases will provide greater clarity about the new justice’s legal philosophy.
In Gamble v. United States, the Supreme Court will choose whether to overturn a long-standing doctrine permitting the federal government and state governments to each try a defendant for the same offense without violating the double-jeopardy clause of the Fifth Amendment.
“It could be really interesting to see how the new justice approaches that question,” Epps said.
Epps also expected to see challenges to qualified immunity, which governs when plaintiffs can sue police officers and other officials for violating their constitutional rights, in the near future.
“The Court has been very aggressive in limiting the ability to sue there, and there’s some good arguments that the Court has gone well beyond the original understanding of the Constitution,” he said.
“That could be very interesting and important, and a chance to see if this justice someone who is just voting reflexively in favor of law enforcement interests, or someone who has a more originalist approach that might cut in a different direction.”
All five sources were confident that the nominee would be confirmed in advance of November’s midterm elections, claiming that the perfect unity among Democrats and two Republican defections necessary to stall the confirmation hearing were unlikely.
Still, Barnett cautioned against ascribing undue influence to the likely new justice, noting that the Court’s swing vote has merely shifted from Kennedy to Roberts.
“The Supreme Court isn’t going to go any further right than Justice Roberts would have us go, and we all know that Justice Roberts is not the most conservative member of the Court,” he said.
“The court is not necessarily going to reflect the new justice’s views, because it will reflect John Roberts’ views.”
Elena Schwartz is a news intern with The Crime Report where this story was first published.