Erwin Chemerinsky has this article in the ABA Journal identifying areas where Justice "Kennedy was the fifth vote for a liberal result, and where it is uncertain, or even unlikely, that Kavanaugh would decide the same way" as Justice Kennedy did.
Much of the discussion involves issues outside our scope and that CJLF takes no position on, so I won't comment on those. On the Fourth Amendment exclusionary rule, Dean Chemerinsky writes:
Exclusionary rule: In Hudson v. Michigan (2006), Justice Antonin Scalia wrote an opinion--joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito--that called for the elimination of the exclusionary rule in Fourth Amendment cases. He argued that the costs of excluding evidence when police officers violate the Fourth Amendment outweigh the benefits of doing so. Justice Kennedy agreed to the result in that case, but declared that the continued operation of the exclusionary rule was not in doubt. But with Kennedy being replaced by Kavanaugh, there could be five votes to overrule a doctrine that conservatives have opposed for decades.Really? I have been arguing to limit Mapp for many years. I think I would remember if the Supreme Court came within a single vote of overruling it completely, especially in a case where my organization filed a brief.
In fact, the first three parts of Hudson are the opinion of the Court, with Justice Kennedy fully on board. That is where Justice Scalia engages in cost-benefit analysis, as the Court has done in many other exclusionary rule cases, and decides that the costs exceed the benefits of applying the exclusionary rule to a situation outside the core of the Mapp rule (a knock-and-announce violation) where existing precedent does not require application. He does not call for overruling Mapp but instead distinguishes it.
In sum, the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial--incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified.
The part that Justice Kennedy did not join is part IV. There Justice Scalia discusses three precedents that he believes support the result he reaches, with no mention of overruling Mapp.
As I said in an earlier post, I believe there is further progress to be made in the good faith area, but I do not think we are close to overruling Mapp completely. The portion of Hudson that Justice Kennedy did not join certainly does not indicate that we are.
Dean Chemerinsky also notes several Eighth Amendment cases:
Punishment in criminal cases: In Roper v. Simmons (2005), Kennedy wrote the opinion in a 5-4 decision declaring the death penalty unconstitutional when imposed for crimes committed by juveniles. In Kennedy v. Louisiana (2008), Kennedy wrote the opinion in a 5-4 decision declaring the death penalty unconstitutional when imposed for the crime of child rape. In Graham v. Florida (2010), Kennedy wrote the opinion in a 5-4 decision holding that it is cruel and unusual punishment for there to be a sentence of life without the possibility of parole for nonhomicide crimes committed by juveniles. In Miller v. Alabama (2012), Kennedy was in the majority in a 5-4 decision ruling that it is cruel and unusual punishment to impose a mandatory sentence of life without the possibility of parole for homicides committed by juveniles. But there is nothing in Kavanaugh's record to suggest that he would come to the same conclusions.
All of these cases involve questions that, in my opinion, the Constitution leaves to the states. They are not properly federal constitutional questions. They are all therefore wrong as a matter of constitutional law, regardless of whether the rules themselves are good ones as a matter of policy.
"Nothing in Judge Kavanaugh's record" does not mean much because, as I among others have noted, D.C. Circuit judges have relatively sparse records on criminal law questions. See this post from Tuesday and this post by Rory Little at SCOTUSblog. Dean Chemerinsky does not cite anything in his record pointing the other direction.
There is, of course, his fidelity to the Constitution, which points in the direction of not grafting on to the Constitution restrictions on the people's right of self-government that are not really in it. That may very well point in the direction of not extending these precedents, though not necessarily to overruling them. But that is only pointing in the same direction the Constitution itself points.
Yes, I agree. I briefed and argued (twice!) Hudson v Michigan for the State. My principal point was that the exclusionary rule is never applied when there is no causal connection between any police error and the discovery of the evidence, and that given a valid warrant and a search of proper scope, exclusion for a knock and announce violation makes sense only if a purpose of knocking and announcing is to give those inside a reasonable opportunity to hide or destroy the evidence (and no one, it is to be hoped, would endorse THAT!). I never could figure out why this was not persuasive to the dissenters (ha!). I was wisely dissuaded from arguing further that the exclusionary rule should be abolished, as deflecting attention from my main argument, so simply said in a footnote: "given that the exclusionary rule is not, as this Court has repeatedly said, constitutionally mandated, Respondent questions whether its forced application on a State that has chosen another path in circumstances where the evidence sought to be suppressed was not discovered as a result of the error of the police is a proper exercise of this Court’s authority."
I remember, Tim. It was a job well done.
BTW, I posted a shorter version of this post as a comment on the ABA Journal site. They suppressed it. I guess the ABAJ "can't handle the truth," to quote a famous movie line.
Good grief! Another reason not to belong.