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October 5, 2018
So how might recent events impact Judge Kavanaugh's views on criminal cases?
I have been thinking about the question in the title of this post for the last few weeks. Today seems like the right time to encourage readers to weigh in given this morning's Senate vote suggesting that we will soon be using the label "Justice" rather than "Judge" in front of Brett Kavanaugh's name.
I have been blogging in various ways ever since Justice Anthony Kennedy announced his retirement (see posts below) that the next Justice could be a critical vote on a lot of criminal justice issues. The optimist in me wants to believe that the last few weeks have given Judge Kavanaugh an even deeper appreciation for the rights of accused individuals (as noted in post below, he has already expressed concern about sentencing based on acquitted conduct). This new Crime Report piece, headlined "Would a Resentful Justice Kavanaugh Derail Juvenile Justice Reform?," highlights how one can readily take a negative view on the consequences of the events of recent weeks on coming SCOTUS jurisprudence. Here are excerpts from the Crime Report piece:
The furor over Supreme Court nominee Brett Kavanaugh’s alleged sexual misconduct as a 17-year-old raises questions about how he would rule on key juvenile justice cases if he is confirmed by the Senate, a John Jay College conference was told Thursday. “I bet you [Kavanaugh] is going to be pretty pissed off about how we all tried to derail his nomination with something he did when he was 17,” said Elton Anglada, president of the Juvenile Defender Association of Pennsylvania.
Anglada said that if Kavanaugh were asked to rule in cases that required the Court to re-examine previous rulings establishing that youths under 18 could not be held legally responsible for criminal acts, based on scientific findings about adolescent brain development, he might be tempted to turn his current critics’ words against them....
“These [juvenile justice] cases are going to go back up to the Supreme Court,” Anglada predicted. “And I think about myself standing in front of Kavanaugh three or four years from now arguing that you shouldn’t revisit Graham, Miller and Roper and my client should be treated differently because he’s a juvenile, and we don’t want to hold a juvenile responsible for his entire life for something he did 35 years ago. “Say that to Brett Kavanaugh with a straight face and see what answer you get.”
I am not inclined to believe Chief Justice Roberts or Justice Gorsuch is eager to revisit Graham, Miller and Roper, so I am not sure a future Justice Kavanaugh is the only key vote in future Eighth Amendment juvenile justice cases. But even if there are not five votes to reconsider Graham, Miller and Roper, there are a host of on-going uncertainties about the reach and application of these cases and their possible future expansion. Again, I kind of want to believe that the events of the last few weeks might make actually make a fair-minded person even more open-minded about the idea that we should not "hold a juvenile responsible for his entire life for something he did 35 years ago," but I may be fooling myself here and elsewhere.
So, dear readers, thoughts on the question in the title of this post (on the juvenile justice issue or any others covered in prior posts linked below)?
A few prior posts with thoughts on sentencing jurisprudence in a post-Justice Kennedy Court:
- Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more
- With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers
- Might Justice Kennedy's retirement lead to defendants having stronger Sixth Amendment rights under Apprendi and Blakely?
- DC Circuit Judge Brett Kavanaugh nominated by Prez Trump to replace Justice Kennedy
- Quick and helpful look at some of Judge Brett Kavanaugh's criminal justice work
- Could Judge Brett Kavanaugh, as a SCOTUS Justice, encourage his colleagues to take up acquitted conduct sentencing?
- An (overly) optimistic account of how new Justices could disrupt federal sentencing based on uncharged and acquitted conduct
- Judge Kavanaugh in 2009: "I think acquitted conduct should be barred from the guidelines calculation."
- After 40+ years as a senator, Orrin Hatch now expresses concerns about acquitted conduct to promote Judge Kavanaugh's elevation
October 5, 2018 at 11:34 AM | Permalink
If Kavanaugh is the man he and his supporters claim he is recent events will not impact his judicial decision making one way or the other. As for myself, I hardly think that overturning Graham and Miller are major targets of any Kavanugh related jurisprudence. He's there to support the corporations and take on the left in the culture wars. I don't see any evidence that he has much interest in criminal justice matters.
Posted by: Daniel | Oct 5, 2018 1:37:41 PM
I am inclined to believe that the writer has found just another absurd way to slap Judge Kavanaugh. Maybe you have too much time on your hands. Get a real job. Or maybe hobby.
This here is penultimate drivel:
"Again, I kind of want to believe that the events of the last few weeks might make actually make a fair-minded person even more open-minded about the idea that we should not "hold a juvenile responsible for his entire life for something he did 35 years ago," but I may be fooling myself here and elsewhere."
Posted by: Henry A. Wilson | Oct 6, 2018 6:58:10 AM
The main thing here is that it seems obvious that Kavanaugh was wrongfully accused. I would expect him to become more aware of who is likely wrongfully accused and who isn't, and to vote accordingly.
He might, or might not, become less receptive to arguments from the Left generally. That's difficult to predict. What is safe to say is that this experience won't make him more receptive to arguments from the Left.
Posted by: William Jockusch | Oct 9, 2018 8:24:09 AM