In 2015, Justice Anthony Kennedy wrote a concurrence in a death penalty case to sound the alarm on solitary confinement. The prisoner in that case, Davis v. Ayala, had probably “spent 20 years or more in a windowless cell no larger than a typical parking spot.” Kennedy noted that such confinement was typical on death row and lamented “the human toll wrought by extended terms of isolation,” which produces anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicide. Kennedy argued that prison conditions are too often ignored: “prisoners are shut away—out of sight, out of mind,” and the “judiciary may be required” to intervene.
Two years later, Justice Stephen Breyer wrote a similar dissenting opinion and voted to stay an execution based on a prisoner’s time in solitary confinement. “If extended solitary confinement alone raises serious constitutional questions,” he wrote, “then 20 years of solitary confinement, all the while under threat of execution, must raise similar questions, and to a rare degree, and with particular intensity.”
Together, the opinions opened a window for the Supreme Court to mandate urgently needed and constitutionally required reform. In the United States, about 25,000 prisoners are serving a substantial part of their sentences in solitary confinement, with 80,000 to 100,000 prisoners held in solitary at any given time. This includes children, for whom the effects of isolation are especially severe. With the conservative Kennedy and moderate Breyer inviting legal challenge, there was hope for meaningful judicial review.
But then Justice Kennedy announced his retirement, President Trump nominated D.C. Circuit Judge Brett Kavanaugh to replace him, and the window to challenge solitary confinement in the Supreme Court will almost certainly slam shut if he is confirmed.
Kavanaugh was chosen precisely for his party loyalty, conservative ideology, and “central casting” background as a white male swaddled in the prestige of elite private schools and powerful government institutions. Republican Senator John Kennedy of Louisiana had said that if Justice Neil Gorsuch has “got a twin, let’s nominate him,” and that is effectively what happened. Kavanaugh and Gorsuch went to prep school together. They clerked for Justice Kennedy on the Supreme Court together. And they were both appointed by President George W. Bush to a federal circuit court before Trump picked them for the Supreme Court.
Kavanaugh and Gorsuch also share similar views on criminal justice, each protecting the rights of criminal defendants in a limited set of cases. Indeed, Kavanaugh has received praise from criminal justice and civil liberties advocates for his laudable concerns about overcriminalization. But the same was true of Gorsuch, and his first vote of consequence on the Supreme Court led to an execution.
Overall, replacing Kennedy with Kavanaugh will only mean fewer legal protections for people ensnared in the criminal justice system. It’s unlikely that Kavanaugh would ever provide the decisive fifth vote for a criminal defendant or victim of police brutality. If he joins the Court’s more liberal members in a criminal justice case, Justice Gorsuch and perhaps Chief Justice Roberts would most likely join as well. But on certain issues—particularly conditions of confinement and the death penalty—Kavanaugh would solidify a conservative majority where Kennedy had been a potential vote, and even a leading voice, in favor of a more humane justice system.
Consider Kennedy’s pivotal role on issues of prisoner rights and excessive punishments. In 2011, he wrote the 5-4 opinion ordering California to release thousands of prisoners to reduce overcrowding. On capital punishment, he wrote 5-4 opinions holding that it is unconstitutional to execute minors and to impose the death penalty for rape. In 2010, Kennedy wrote the 6-3 opinion in Graham v. Florida holding that juveniles cannot be sentenced to life without parole for non-homicide offenses, and in 2012 he joined the 5-4 opinion in Miller v. Alabama holding that mandatory life without parole for juveniles is unconstitutional.
With Kennedy as the fifth Republican appointee, it was plausible that the Court would not only address long-term solitary confinement on death row but eliminate death row altogether. Kavanaugh’s confirmation would abruptly stall further progress in these areas.
Kavanaugh’s views on criminal justice are defined by a deference to law enforcement and a broad view of executive power that will enable more stops and searches, more arrests, more prosecutions, and an overly punitive justice system.
In a speech last year, Kavanaugh praised the work of former Chief Justice William Rehnquist to eliminate constitutional protections for criminal defendants and to uphold the constitutionality of the death penalty. Kavanaugh called Rehnquist his “judicial hero,” and singled out his efforts to eliminate the Fourth Amendment’s exclusionary rule—which bars the admission of unlawfully obtained evidence at trial—and to weaken Miranda v. Arizona, the seminal ruling that requires police to notify suspects of their rights to remain silent and to have counsel present before interrogating them.
Kavanaugh’s record on the D.C. Circuit reflects these views. In a concurrence, he wrote that the National Security Agency’s expansive warrantless surveillance program that collected phone data on hundreds of millions of Americans did not constitute a “search” under the Fourth Amendment. And he argued, in dissent, that a police officer did not violate the Fourth Amendment when he stopped a defendant without probable cause and unzipped his jacket to search for evidence.
In a series of decisions, Kavanaugh deferred to the executive branch on detainees held in Guantánamo Bay, defending the controversial use of military commissions to prosecute terror suspects and limiting the rights of detainees to challenge their confinement in federal court.
And on sentencing, last month Kavanaugh dissented from a decision that vacated a prison sentence because the trial judge improperly sought to make an example of the defendant without explaining why he was singled out for especially harsh treatment. Kavanaugh found this reasoning “confounding.”
Kavanaugh’s concerns about overcriminalization, on the other hand, are more circumscribed. He has argued that criminal prosecution requires clear notice of what constitutes a crime and what the consequences of that crime will be. Like Gorsuch, he has specifically questioned the “phalanx of federal regulatory crimes” that criminalize a widening swath of behavior without sufficient notice or guidance.
In United States v. Burwell, for example, the D.C. Circuit (including Judge Merrick Garland, President Barack Obama’s unsuccessful nominee to replace Justice Antonin Scalia) upheld a 20-year sentence enhancement for a man who used automatic weapons in a series of bank robberies, even though the government did not prove that the man knew that his weapon fired automatically. In dissent, Kavanaugh argued that “imposing an extra 20 years of mandatory imprisonment based on a fact the defendant did not know is unjust.”
But Justice Gorsuch’s record serves as a cautionary tale against drawing broad conclusions from Burwell. The rationale of Kavanaugh’s Burwell dissent mirrors much of what then-Judge Gorsuch wrote on the Tenth Circuit about the risks of overcriminalization. He too dissented over people who “sit in prison because … case law allows the government to put them there without proving a statutorily specified element of the charged crime.”
Yet on the Supreme Court, Gorsuch has evinced hostility toward criminal defendants across a variety of issues, often in dissent. He dissented when the Court held that police need a warrant to surveil suspects using cell tower data. In capital cases, he dissented when the Court provided relief to a Black defendant sentenced to die by a juror who used a racial slur to describe Black people and he dissented when the Court held that capital defendants have the right to maintain their innocence at trial, even when their lawyer wants to admit guilt. Gorsuch also joined an opinion holding that noncitizens detained under the Immigration and Nationality Act are not entitled to periodic bond hearings.
Adding Kavanaugh to the already conservative Roberts Court will only make it more so. Once promising efforts to improve conditions for prisoners and to further reduce if not eliminate executions would turn doubtful. But that is just the near term. Kavanaugh is only 53; Justice Gorsuch is 50. If Kavanaugh is confirmed, the once high-school classmates will serve on the high court together for decades.