The era of the Kennedy Court is coming to an end with the retirement of Justice Anthony Kennedy and the nomination of his proposed successor, Brett Kavanaugh.
To say that Justice Kennedy was a moderate on the Supreme Court in a role that earned him the sobriquet of “the Decider” is an oversimplification of Kennedy’s tenure as a Supreme Court Justice. While it is true that he often sided with the more liberal wing of the Supreme Court on several civil rights-based issues – such as gay rights, affirmative action and abortion – he was more often than not in the conservative majority, especially in close cases such as the recent Janus v. AFSCME decision concerning public sector union dues. In cases involving criminal justice and criminal procedure issues, he was decidedly more conservative, siding with the government. Justice Kennedy’s 30-year plus tenure has been significant and his successor now enters into what is expected to be a highly contentious and politically divisive confirmation battle.
So what can our nation’s law enforcement expect of Judge Brett Kavanaugh as the newest U.S. Supreme Court Justice?
Professional experience
Kavanaugh, like Scalia and Kennedy, is a Catholic and, if confirmed, would join fellow Yale Law graduates Justices Alito, Sotomayor and Thomas. He would also become part of the Catholic majority on the Supreme Court. While this generally is not a subject of discussion in most cases before the Supreme Court, it does infuse the debate over abortion rights. Kavanaugh’s nomination places him as the second former Justice Kennedy law clerk to be nominated to the nation’s top court by President Trump whose prior candidate, Justice Neil Gorsuch, was confirmed on April 17, 2017, by a 54 to 45 Senate vote.
Judge Kavanaugh comes to his Supreme Court nomination by way of the District of Columbia Circuit Court of Appeals where he served as a judge since his 2003 appointment by President George W. Bush. Prior to his judicial nomination, Kavanaugh served as a lawyer for President Bush and as Associate Counsel to Special Counsel Ken Starr’s investigation of the Monica Lewinsky scandal during the Clinton administration.
Kavanaugh’s judicial philosophy
In regard to his future impact on the Supreme Court, Kavanaugh is considered to be very conservative, falling just below Justice Thomas according to most opinion trackers. But trying to discern the future jurisprudence of a Supreme Court nominee is not always as clear as we may hope it to be.
The Supreme Court represents the apex of the legal profession, and has seen many a judicial temperament shift over the course of time. What is known of Kavanaugh from his 15 years as a judge is that he is an adherent to the text of the law and not one to advocate judicial activism. His brief comments upon accepting the nomination reflect his judicial philosophy: “A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.”
Police searches
Kavanaugh has participated in over 300 cases as a judge assigned to the D.C. Circuit Court of Appeals.
During his time there he has participated in several Fourth Amendment cases involving police searches. In 2010 he dissented from a D.C. Circuit decision not to rehear a case wherein a prior three-judge panel decided that a suspected drug dealer’s rights were violated when the police used a GPS device attached to his car to track the suspect’s movement for over a month.
Kavanaugh found fault with what he termed the panel’s “novel aggregation approach to Fourth Amendment analysis.” However, his dissent in this case – U.S. v. Jones, 625 F. 3d 766 (2010) – did foresee the argument that Justice Scalia would craft in his majority opinion two years later in which the Supreme Court held that the placing of the GPS on the vehicle was a physical intrusion amounting to a search.
Judge Kavanaugh’s lower court dissent had framed not only what became the ultimate issue for the Supreme Court, but a key determining factor he felt the circuit court panel had failed to consider: “[W]hether the police’s mere touching or manipulating of the outside of one’s car is a ‘physical encroachment within a constitutionally protected area’ requires fuller deliberation.”
However, his prior criticism of his colleagues’ aggregation analysis when considering privacy interests in collected data – such as cellphone location records to track a suspect’s movements on a particular date and time – would now have to give way to the recent Supreme Court ruling in Carpenter v. United States that such data collection is a search.
Proponent of stop-and-frisk
As stop-and-frisk continues to be a hot-button issue prompting reform activists to call for change, the Supreme Court’s precedent in Terry v. Ohio, 392 U.S. 1 (1968) is increasingly under attack. While Terry v. Ohio has its detractors, every working police officer knows the valuable purpose its proper application serves as a crime-fighting device within the communities they patrol.
Judge Kavanaugh’s prior judicial writings in this area show him to be a proponent of the practice and the initial intent behind Chief Justice Earl Warren and the Supreme Court’s 1968 decision.
In a 2007 case, U.S. v. Bullock, 570 F. 3d 342, Judge Kavanaugh wrote the majority opinion upholding the frisk of a motorist who was stopped for an illegal U-turn and could not produce a vehicle registration or provide the name of the vehicle’s owner. The driver was ordered to step out of the vehicle and when the officer frisked him for weapons, he felt a hard object in the driver’s pants that the officer believed to be a weapon. When the officer searched the pants, he found crack cocaine and a scale. Judge Kavanaugh’s majority opinion considered the nature of the initial stop, the officer’s founded belief that the vehicle was stolen and the risk factor involved in vehicle stops to uphold the initial frisk and subsequent search of the driver.
In a subsequent stop-and-frisk case before the D.C. Circuit Court of Appeals, U.S v. Askew, 529 F. 3d 1119 (2008), Judge Kavanaugh wrote a dissenting opinion when the court held that police officers violated the Fourth Amendment when they unzipped a suspected armed robber’s jacket and found a gun. The police action of unzipping the coat was done to facilitate eyewitness identification, but Judge Kavanaugh wrote that the unzipping of the coat could be justified as a protective measure under the contours of Terry v. Ohio. Judge Kavanaugh believed that such action was objectively reasonable due to the suspect’s initial physical resistance to the frisk, as well as their continuing investigation of the armed robbery. He wrote that the physical manipulation of the coat during the stop was part of a valid, objectively reasonable “show-up” identification process.
We will certainly learn more about Judge Kavanaugh in the months ahead as his confirmation process gets underway. For now it is business as usual for law enforcement since the real impact of a Supreme Court justice is often years in the making. If confirmed it is unlikely that Judge Kavanaugh’s ascension to the Supreme Court will change its present ideological composition.
