What Brett Kavanaugh Means For The Criminal Justice System

Brett Kavanaugh is expected to usher in an even more punitive criminal justice system, whereas Justice Kennedy had made some progress against the death penalty.


After Justice Kennedy’s retirement, many civil rights advocates worry that American judiciary may not recover from the loss of one of its few marginally more humane voices. President Donald Trump’s nomination Brett Kavanaugh is gearing up to take up the place that Justice Kennedy once held.

The fears are not misplaced. Despite the many criticisms rightfully leveled against him, Justice Kennedy was one of the only voices that advocated keeping the prison system in America in check. Time and again, he had stood up to the cruel practices that the American justice system is defined by.

In 2015, he had written the concurrence on the Davis v. Ayala case, and detailed the damage to the prisoner’s human dignity wrought by solitary confinement. He lamented that “prisoners are shut away—out of sight, out of mind,” and called for urgent reform of the judicial system.

Then in 2017, Justice Stephen Brayer had stayed the execution of one prisoner after considering the fact that a large proportion of his sentence had been spent in solitary confinement. It was opinions like these that had prompted the Supreme Court to mandate constitutionally required reforms.

Now, any hope of reforming the notorious criminal system in the USA seems dim with the expected arrival of Kavanaugh.


Kavanaugh, for those unfamiliar with his ideology, was selected after Senator John Kennedy of Louisiana had urged selectors to nominate the “twin” of Neil Gorsuch, if they could find such a man. The first vote of consequence of Gorsuch in the Supreme Court led to an execution.

Gorsuch and Kavanaugh had gone to prep school together and both had been appointed by George W. Bush to a federal circuit court.

Many fear that as Justice Kennedy’s replacement, Kavanaugh would only strengthen a conservative majority in the judiciary. Kavanaugh’s beliefs themselves are marked by a pronounced deference to the law and a conviction that the law cannot be biased or harmful. This means that the efforts of Justice Kennedy, who had rallied against the ease with which death penalty is handed out in the USA, will give way to overcriminalization and an especially punitive justice system.

In a country like the USA, this does not bode well for people of color. Many of them are victims of police brutality and are often the target of police violence.


Banner Cred: Reuters, Jim Bourg

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