New Supreme Court Justice Signals Changes in Several Important Areas

The face of the United States Supreme Court has changed considerably in a relatively short time.  Two very conservative judges – Brett Kavanaugh and Neil Gorsuch – have now joined the bench.  At least in some circles, it was believed that Gorsuch’s appointment would not have a monumental impact since he was replacing Antonin Scalia, who was a reliably conservative vote.  Now that Kavanaugh has been confirmed and sworn in, there is a solid five-judge conservative voting bloc,  As a result, defense attorneys need to be mindful of possible changes in the following areas:

Search and Seizure – The exclusionary rule is a judicial remedy designed to exclude evidence discovered as a result of police misconduct.  Essentially, the rule states that when tainted evidence is obtained as a result of wrongdoing by law enforcement, other evidence stemming from the original evidence is “fruit of the poisonous tree”, and must also be suppressed.  Justice Kennedy, who Kavanaugh replaced, was not a major fan of Mapp v. Ohio, which applied the exclusionary rule to the states.  Kavanaugh’s anticipated opposition to the exclusionary rule may send a message to prosecutors that it is to be overturned.  Given Kavanaugh’s history, do not be surprised if prosecutors start arguing that Mapp is to be reconsidered or overruled.  In fact, there may now be five votes on the Court that would hold in this way.  This momentous change would, in essence, allow law enforcement officers to ignore constitutional protections when collecting evidence.

Gun Rights – The Court previously took relatively few gun cases, but its new conservative majority will probably start reading the Second Amendment more broadly.  As a result, there will almost certainly be more cases that address the scope of gun control.  In fact, Justices Thomas and Alito, as well as Justice Gorsuch, have previously sought unsuccessfully to rule on more Second Amendment cases.  With Kavanaugh now on the bench, the “rule of four”, which allows four of the nine justices to grant cert, would be satisfied thereby adding additional gun control cases to the Court’s docket.  Thus, open issues, such as whether the right to bear arms outside the home, may be addressed.  The Court may also be asked soon to rule on issues concerning concealed carry permits, and on the validity of laws banning assault rifles.

Sentencing – It is almost a certainty that Kavanaugh will be more conservative in his application of Eighth Amendment principals than was Kennedy.  Kennedy frequently raised arguments concerning the dignity of individuals or groups.  He sought to limit the scope of the death penalty, and concurred in a case that granted a sentencing reduction after the advisory guidelines changed.  Kennedy also expressed relatively liberal views on issues such as life without parole, solitary confinement and mass incarceration, and was a strong voice when it came to protecting the rights of juvenile defendants charged with adult crimes.  Based upon what we know of his record, it is unlikely that Kavanaugh will continue down these paths.

Prison Reform – Prisons are sometimes required by a court to reform various aspects of their operations.  Given the conditions in many prisons, such court-mandated reforms are the only way to help ensure that inmates are treated humanely while they are serving their sentences.  It is possible that Kavanaugh would be hostile to these court-ordered reforms if and when they are reviewed by the Supreme Court.

Defense attorneys need to be prepared for monumental shifts in these important areas.  As a result of Kavanaugh’s appointment, legal principles that have been taken for granted for many years may be changing abruptly in the near future.

James S. Friedman, LLC, is a criminal defense firm located in New Brunswick, New Jersey.  We defend people accused of crimes in all New Jersey courts, the New York State courts located in Manhattan and Brooklyn, and the United States District Courts in New Jersey and New York City.  If you have been charged with criminal conduct in one of these courts, do not speak to the police.  Speak to us first.



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