On Criminal Justice, Kavanaugh Might Be More Centrist than Kennedy

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Statue at U.S. Supreme Court. Photo by Lorie Schaull via Flickr

Many commentators have asserted that Brett Kavanaugh will “move the Supreme Court to the right,” if his nomination is approved, because he is more conservative than retiring Justice Anthony Kennedy, according to standard political science metrics.

These metrics are a prized tool of political science professors. There’s a whole poli-sci industry devoted to coding appellate judges’ votes as “right” or “left” to try to quantify judges’ ideologies. I am generally skeptical as to whether “ideology” can be meaningfully measured along a single axis in many contexts, but I am all in favor of empirical studies of legal issues, and I agree that we should pay attention to the poli-sci metric comparisons of Supreme Court nominees.

Brett Kavanaugh

Judge Brett Kavanaugh. Photo courtesy wikipedia.

Here’s the thing, though: The standard “right/left” rankings of Supreme Court justices don’t apply neatly—or at all—to the major constitutional criminal procedure cases of the past 30 years. That narrower realm—namely, the set of rules, developed through case law, that governs the interactions between police and the public, and prosecutors and defendants is the constitutional law of cops and robbers.

It is a dense web of dozens of rules, standards, and exceptions created over the years (mostly since the 1960s) by particular Supreme Court cases interpreting the Fourth, Fifth, and Sixth Amendments.

Those cases then get implemented and applied (“adumbrated” is my favorite word for this process) by the lower courts, and as ever-changing lower-court fact patterns create uncertainties and splits between courts, the doctrinal questions percolate back to the Supreme Court for periodic refinement.

Do the police need a warrant to search your cell phone when they arrest you? Do they need a warrant to obtain historical cell-tower location data? Can the government convict you based on evidence obtained in a racial-profiling traffic stop? How about a traffic stop based on an erroneous computer report that you had an outstanding warrant? Or a traffic stop based on the officer’s misreading of the state law governing brake lights? When can the government put a snitch in your cell? Can a detective keep asking you questions if you say “I want a lawyer”? And on and on.

The law of criminal procedure is judge-made law—Supreme-Court-made law. Criminal-procedure rules are binding across the land and are not subject to revision by the elected branches. (In 2000, for example, the Supreme Court definitively rejected Congress’ attempt to legislatively override Miranda’s suppression remedy.)

So changes in the Court’s personnel matter a lot. And justices’ voting patterns on criminal procedure issues do not follow the poli-sci “left/right” matrices. Over the past 30 years, justices on the poli-sci “right” have often voted for crim-pro doctrines that the general public (and the poli-sci professors) would call “left,” and vice versa.

Additionally, it’s pretty much only in crim pro cases that we’ve seen true right-left coalitions, for example in cases that begin like this: “Justice Scalia, joined by Justices Thomas, Souter, Ginsburg, and Stevens, announced the opinion of the Court…”

I’ve written about this phenomenon many times, and I think it can be briefly explained by the fact that “strict constructionism” (in scare quotes because like all real lawyers—meaning people who actually represent clients and go into court and try cases—I find the term to be pretty meaningless) often leads to pro-defendant results. Which, if you think about it, should be obvious: One of the primary goals the Framers had for our Constitution was to create a bulwark against an invasive and arbitrary police state. That is the whole point of the Fourth, Fifth, Sixth, and Eighth Amendments, as well as (in some people’s view) the Second.

So why does this matter now? Because right now the country is awaiting the replacement of a “moderate” (Justice Kennedy) with a “hard-right” conservative (Judge Kavanaugh), and the dominant media narrative is how far Kavanaugh will “move the Court.” And on criminal-procedure issues—let me emphasize I am not addressing abortion or gay marriage here, just criminal procedure—Kennedy, the great “centrist” on the poli-sci ideological matrix, was no “centrist” at all. He was as far to the “right” as you can get—he was on the side of the cops and prosecutors, virtually every single time.

Every big Supreme Court crim-pro case is a power struggle over whether the police and prosecutors will be permitted to use their power in some particular contested way, or not. Every case thus either permits an expansion of government police powers, or creates a bulwark against government police powers. And Kennedy was on the side of expanded government police powers as much as or more than any other modern justice. Kennedy sided with police power far more readily than, for example, Scalia and Thomas, both of whom repeatedly joined with “left-right” coalitions in cases that limited police and prosecutorial power.

I don’t think the public is generally aware of that, and I’m often frustrated with media coverage of the Supreme Court that implicitly assumes that the poli-sci ideological matrices tell us everything we need to know. So I’m going to give some detailed examples below. In short, within the narrow realm of criminal procedure jurisprudence, a Justice Kavanaugh who turns out to be more like Justice Scalia than Justice Kennedy could be a move to the “left.”

(Again, I’m not talking about abortion and gay marriage, and I should note that I share the concerns many commentators have raised that Judge Kavanaugh would vote to overturn the Court’s precedents in those areas.)

Here’s a small sample of recent, seminal crim-pro cases that impact core constitutional right; Kennedy voted in each case to reduce the individual constitutional right and expand the government police power.

Kyllo v. United States (2001)

Kyllo is one of the most important Fourth Amendment cases. It places a meaningful limit on the government’s warrantless use of technological enhancements to glean information otherwise protected by the Fourth Amendment. The government—without getting a warrant—pointed a thermal imaging camera at the outside walls of a house to look for excess heat (evidence of indoor marijuana cultivation). The government argued that police didn’t need a warrant because there was no “search”—hey, we were out on the street; we didn’t bust in the door or anything.

The Court held, 5-4, that the tech-enhanced imaging was a “search,” and created an important rule: any tech-enhanced surveillance that invades protected areas using technology not in common public use requires a warrant. That decision is a hugely important bulwark for civil liberties given the rapid expansion in the capabilities of new surveillance technologies. If the Fourth Amendment just doesn’t apply when the government deploys clever tech from a distance, then we’re most of the way to 1984.

Where was Kennedy? With the government. He would have held that the imaging was not a search and that the police had carte blanche to conduct it without a warrant. (Another reason Kyllo is interesting: it was an early indication of the uselessness of poli-sci ideological matrices in the crim-pro context. Liberal lion John Paul Stevens authored the pro-government dissent, and arch-conservative Antonin Scalia wrote the pro-civil liberties majority opinion.)

Blakely v. Washington (2004)

United States v. Booker (2005)

You probably haven’t heard of these, but they’re the two most important in a line of cases in which the Court has greatly reduced Congress’s ability to mandate sentence enhancements and curtail judicial sentencing discretion. Basically, the Court held (for reasons I won’t explain here) that Congress could not require individual judges to follow specific sentencing formulas laid out in a manual. This line of cases is a huge deal—the mandatory nature of the guidelines gave prosecutors far too much leverage on sentencing, and virtually eliminated the core judicial function of individualized sentencing in the interests of justice. Where was Kennedy? With the pro-government dissent.

Hudson v. Michigan (2006)

 Hudson is a truly terrible case that exemplifies one of the most pernicious tendencies in modern Fourth Amendment jurisprudence: untethering the remedy (suppression of evidence) from the right (the right to be free from unreasonable searches). In Hudson, the cops got a regular search warrant, not a “no-knock” warrant. If you don’t have a no-knock warrant, you have to knock and announce yourself; you can’t just break down the door and storm in. But the cops didn’t care: they broke down the door and stormed in. It was undisputed that they violated the warrant. And normally, violating the terms of the warrant has a consequence: suppression of the evidence seized.

Nah, said the Hudson Court, no need to impose any consequences. After all, the only part of the warrant they violated was the part that said they couldn’t kick in the door. They still had a warrant to search, after all. The defendant can always file a civil suit to get damages (for the price of the door). What lesson does that teach the police? That every warrant can be a no-knock warrant, if you want; you don’t risk losing the evidence and blowing the case (which is just about the only deterrent to police investigative misconduct). Where was Kennedy? With the government.

Davis v. United States (2011)

Heien v. North Carolina (2014)

Suppose a cop takes a certain investigative action, with no warrant (and thus no approval from a court) because he thinks that it’s legally authorized—he thinks that a prior court decision or a particular statute says it’s OK. Turns out, when the case gets to court, that he was wrong about the law; what he did was straight-up illegal. Can the government use the illegally-obtained evidence to convict the defendant anyway, because the cop thought he was correct? Where was Kennedy? With the government.

 Missouri v. Seibert (2004)

 Seibert is, in my opinion, up there with Whren v United States (1996) as one of the worst modern crim-pro decisions. It has probably done more than any other decision to eviscerate Miranda. Kennedy unrolled the welcome mat for police to find clever ways to evade Miranda, so long as they don’t put it in writing and hold training seminars on doing so.

You know, reader, that if the police interrogate you in custody without reading you your Miranda rights, they can’t use that statement against you, right? So the issue in Seibert is whether police could use the clever method of getting an incriminating pre-Miranda statement, then reading the defendant the Miranda warnings and asking him to repeat the pre-Miranda statement. Now there were five votes to reject that practice out of hand, but Kennedy went out of his way to hijack the decision with a “narrower” concurrence (which, under the Court’s precedents, makes his opinion the controlling one) that only he signed, which said that the post-Miranda use of incriminating pre-Miranda statements is fine so long as there’s no “deliberate two-step strategy” to evade Miranda.

Anthony Kennedy

Justice Anthony Kennedy. Photo courtesy Wikipedia commons.

Who should have the burden of proving that “deliberate purpose,” according to Kennedy? The defendant. Who of course will never be able to do so, as long as the police don’t have a “how to avoid Miranda” training manual (which the department at issue in the case actually did). So Kennedy told the nation’s police that they could find clever ways to evade Miranda with no consequences, so long as they don’t put it in writing. It’s a terrible, terrible opinion, that pays lip service to Miranda while stabbing it in the back.

 United States v. Patane (2004)

 Patane is another blow to Miranda, holding that even if an un-Mirandized statement is suppressed, the fruits (evidence) obtained based on that statement can still be admitted. It’s an invitation to cops to just ignore Miranda, if they think that they can get a statement that will lead them to derivative evidence. Kennedy not only joined Justice Clarence Thomas’s opinion (Justice Thomas, who’s been fairly good on some other crim-pro issues, has always hated Miranda, because he doesn’t see it in the text of the Fifth or Sixth Amendments), but added his own concurrence to undermine Miranda further, writing that it “must be accommodated to other objectives of the criminal justice system.”

Remember, the rule for the last 50 years has been that a statement taken in custodial interrogation without Miranda warnings is a coerced statement, as a matter of law. Justice Kennedy, however, thought it important to tell the nation that in his opinion, admitting the evidentiary fruits of a coerced statement is fine as long as the coerced statement itself is not admitted.

Montejo v. Louisiana (2005) 

Montejo is another one you haven’t heard of, but that has real consequences for indigent defendants. Like Seibert, it’s a decision that encourages police to try to subvert defendants’ constitutional rights and draws them a map of how to do it.

Jesse Jay Montejo was arrested and brought to court for his initial appearance, at which he was appointed a public defender. Before the lawyer was able to meet with him, two detectives went to his cell and asked him to take a ride with them. On the ride, he made incriminating statements, which the government introduced at trial. “Wait,” you’re saying—“They can’t interrogate him without his lawyer present, can they?”

Well, sure, that’s true, said five Justices, but only if the defendant expressly says so, in response to a police attempt to interrogate him. Note the importance of the italicized words: the Court says that the fact that the guy has counsel creates absolutely no legal bar against the police trying to get him to talk without his lawyer present. Until he expressly says, “I won’t talk without my lawyer,” in response to their attempts to interrogate him, he is fair game. They can pester him all they want, and if he gives in, he’s SOL.

“No reason exists to assume that a defendant like Montejo, who has done nothing at all to express his intentions with respect to his Sixth Amendment rights, would not be perfectly amenable to speaking with the police without having counsel present. And no reason exists to prohibit the police from inquiring.” Kennedy didn’t write that, but he joined it.

Johnson v. United States (2015) and the ACCA residual clause.

In a series of cases (spurred by Justice Antonin Scalia) the Court has thrown out (technically, held as “void for vagueness”) statutory provisions creating long sentence enhancements for certain crimes, for defendants who have a prior conviction for, among other things “conduct that presents a serious potential risk of physical injury to another.”

Yeah, you’re saying, that phrase, which we call the “residual clause,” is pretty vague, isn’t it—how are you supposed to predict in advance whether that enhancement would apply to you? (Remember that being able to understand in advance the contents of criminal laws is a core due process right.) Where was Kennedy? He wrote a separate opinion to say that he does not think the residual clause is unconstitutionally vague.

Why not? Who knows; he doesn’t say. (But he also adds that the conduct at issue in the case—possessing a sawed-off shotgun is not “conduct that presents a serious potential risk of physical injury to another,” which I venture to say most people with law-enforcement experience will disagree with. There’s a good reason short-barreled shotguns are per se banned: they have no non-threatening, non-criminal purpose.)

 Arizona v. Gant (2009) 

Gant is an important case for everyone who uses a car. The Court limited the police power to conduct warrantless, suspicionless searches of the interior of a car after arresting the driver. It’s a simple proposition, and it’s one of those “left-right” coalition cases. The majority was Stevens, Scalia, Souter, Thomas, and Ginsburg. Where was Kennedy? With the government, on the side of allowing searches on no basis whatsoever. (As you probably know, reader, and as I’ve written many times, the police can search a car without a warrant, so long as they have probable cause to believe that it contains evidence. Gant was about “just ‘cuz” searches—searches with no basis to think that there was anything there, in the hopes that you’ll get lucky.)

Maryland v. King (2013) 

Can states take DNA swabs from every arrestee and put them in a database forever? Regardless of the basis for the arrest, and regardless of whether the arrestee was ever convicted of anything or even charged? Where was Kennedy? This sounds like one of those civil rights issues where a “moderate” or a “swing” justice might vote to keep Big Brother out of our DNA. Nope. The swing justice, whose vote made the difference, swung with the 5-4 majority upholding the sampling.

Carpenter v. United States (2018)

Let me end with this one, because you’ve probably heard of it. The Court held that the police need a warrant to obtain location data transmitted from your cell phone to your phone company. (If you’re wondering why that wasn’t the case before June 2018, that’s a topic for another day.) By now you’ve probably read that Kennedy exited the jurisprudential drama stage right—hard right.

Kennedy provided the decisive fifth vote in several hugely significant 5-4 decisions this past spring. But in Carpenter, he was in the four-justice minority, and he wrote a dissent arguing that the Court should not expand the concept of “reasonable expectation of privacy” to include location data, because, hey, if you didn’t want the government to be able to track your movements down to the meter at every moment, well, you just shouldn’t have a cell phone. It’s an opinion that resolutely rejects any attempt to recognize that the Fourth Amendment has to take into account changes in technology. And that’s a very dangerous stance for a Supreme Court justice to take, in my view. Technology develops, and our Constitution is doomed if we refuse to let our jurisprudence develop with it.

All right, you’re saying, enough about Kennedy—where’s Kavanaugh going to be on these issues?

If you’re mad that I’m writing about Kennedy and not Kavanaugh, you’re missing my point. I’m not going to offer issue-by-issue predictions; Senate staffers (and plenty of commentators) are poring over Kavanaugh’s DC Circuit voting record, but circuit opinions and voting patterns are imperfect predictors because circuit courts have to follow existing Supreme Court caselaw, whereas the Supreme Court only takes cases where the law is uncertain, or there’s a circuit split. (And of course the Supreme Court is allowed to overrule its precedents, too, which it has been willing to do in the criminal procedure arena in recent years.)

Here’s the point. Kennedy was hard right on constitutional criminal procedure, despite being counted as a “moderate” on the standard poli-sci ideology matrices.  Kavanaugh will likely be to Kennedy’s right on those matrices generally. But that does not necessarily mean that he’ll be more pro-government in crim-pro cases. (That would be pretty much be impossible, given Kennedy’s record.)

If “to the right of Kennedy” means “more like Scalia and Thomas,” then Kavanagh might actually strengthen the pro-defendant “left-right” crim-pro coalitions of recent decades.

This is just one perspective on one slice of the issues the Court has to deal with. So bear in mind that there are lots of reasons to support or oppose a Supreme Court nominee other than criminal procedure jurisprudence. None of the above has anything to do with the Voting Rights Act, the Civil Rights Act, Roe, Griswold, Lawrence, Obergefeld, Citizens’ United, presidential subpoenas and indictments, the “unitary executive” theory, or the power of a president to pardon himself or kowtow to a hostile foreign dictator. The Senate should question Kavanaugh about all these topics, and the public should care deeply about them.

Caleb Mason

Caleb Mason

There are myriad substantive areas on which commentators have expressed serious concerns about Kavanaugh’s nomination. My point is simply that in the area of criminal procedure, Kennedy was not a “centrist” at all. You can’t get any farther to the “right” than Kennedy was on criminal procedure, so on those issues, Kavanaugh’s appointment either won’t change the Court much, or might conceivably move it in a pro-defendant direction.

Caleb Mason is a partner at Brown, White and Osborn in Los Angeles, a former federal prosecutor, and an occasional contributor to TCR on legal issues. He welcomes readers’ comments.

One thought on “On Criminal Justice, Kavanaugh Might Be More Centrist than Kennedy

  1. From everything we know about Kavanaugh, though, isn’t he more of an Alito than a Scalia? This article might have been more appropriately targeted at a Gorsuch-like conservative nominee, who seems to have some space to side with the left on crim pro cases, but every Kavanaugh opinion I’ve heard of is very much on the side of government. I agree that crim pro cases often show “liberal” justices less liberal than they seem to be on other issues, but I’m not sure that means Kavanaugh is a leftward swing on criminal legal system issues.

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