Rory Little has this post at SCOTUSblog titled "Judge Kavanaugh's record in criminal cases." The post does not cover Fourth Amendment cases (much), previously covered by Orin Kerr, or the enemy combatant cases, to be covered later by Jonathan Hafetz.
As I noted previously, D.C. Circuit judges get a lot fewer criminal law cases than the judges of the numbered circuits, so there isn't a lot there. Rory characterizes what there is as "a relatively bland body of work," consistent with my own reading. He notes a number of pro-defendant opinions. There is an ineffective assistance case where trial counsel did not introduce expert testimony of battered woman syndrome in a case where duress was the defense, United States v. Nwoye. The disagreement between Judge Kavanaugh's majority opinion for the defendant and Judge Sentelle's dissent is really a fact-bound assessment of Strickland prejudice, not the admissibility of BWS evidence generally. Rory also notes a few pro-defendant cases taking a strict view of mental state (mens rea) requirements. I agree with Rory that there is nothing exciting here.
On the Fourth Amendment, Rory links to Orin's post but also gives us a linguistic note:
But I noticed an odd repetition in my review: On more than one occasion, Kavanaugh has begun an opinion by saying: "This is a Fourth Amendment exclusionary rule case." Might this portend his agreement with some Supreme Court justices, that the "exclusionary rule" adopted universally in 1961 in Mapp v. Ohio should be reconsidered?
Rory is struck by this "odd repetition" and I am struck that Rory finds it odd.
My first impression was that Rory was reading too much into it, but maybe our different reactions mean that there is something there. I regard the Fourth Amendment exclusionary rule as a singular rule of law. Every time it is applied and makes a difference in the outcome, the difference it makes is to produce a wrong and unjust result in the case at hand in order to promote an overall greater respect for Fourth Amendment rights in the future. In the good company of Benjamin Cardozo and John Henry Wigmore, I think this is a wrong rule of law with no basis in the actual Fourth Amendment. So Fourth Amendment exclusionary cases are different, and there is nothing odd about introducing them as such.
But evidently it does seem odd to people who support the exclusionary rule, so perhaps Judge Kavanaugh's choice of words means he is more aligned with my thinking on the subject than Rory's. One can hope. I don't think there is a realistic chance of overruling Mapp v. Ohio in the foreseeable future, but more damage control in good faith cases is possible.
Rory notes, "When in dissent in criminal cases, Kavanaugh writes respectfully and without ad hominem or vitriolic language." Good. As much as I admired Justice Scalia in many ways, I did not think his barbed language in opinions was helpful.
Rory concludes: "Although Kavanaugh cannot overall be described as a criminal-law 'liberal,' one might call him a 'Kennedy-esque' moderate." Moderate maybe, but I tend to doubt the "Kennedy-esque." From what I have seen of Judge Kavanaugh's approach to constitutional law generally, I doubt he will endorse Justice Kennedy's usurpation of the authority to declare punishments and even sentencing procedures "cruel and unusual" based on the justices' own evaluation, independent of both history and current practice. I expect we will find out before too long.
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