Brett Kavanaugh's Record in Criminal Cases Before the Supreme Court

Update (October 2026): Brett Kavanaugh joined the Supreme Court in October 2018. Separately, on the acquitted-conduct issue discussed below, the U.S. Sentencing Commission changed the guidelines effective November 1, 2024. Conduct you were charged with and acquitted of in federal court generally can no longer be used to calculate your guideline range. USSG §1B1.3(c), Amendment 826.

Brett Kavanaugh's 12 years on the D.C. Circuit left a mixed record in criminal cases. He was not a strong voice for the Fourth Amendment, but he criticized "acquitted conduct" sentencing and pushed for requiring proof of a guilty mind. This post, written in 2018 when he was nominated, looks at that record.

Justice Anthony Kennedy, whose seat Kavanaugh was nominated to fill, often voted against criminal defendants outside of death penalty cases. He dissented in Apprendi, Booker, Alleyne, and other major criminal procedure cases. So whatever one thought of the nomination, Kavanaugh might turn out better for criminal defendants on some issues.

Acquitted Conduct

Kavanaugh has not been a strong voice for the Fourth Amendment, but he has criticized "acquitted conduct" sentencing, where a judge increases your sentence based on charges a jury found you not guilty of. United States v. Brown, 892 F.3d 385, 415 (D.C. Cir. 2018) (Kavanaugh, J., dissenting in part).

Proof of Intent

Kavanaugh has pushed for requiring the government to prove mens rea, meaning a guilty state of mind. United States v. Williams, 836 F.3d 1, 20 (D.C. Cir. 2016) (Kavanaugh, J., concurring); United States v. Burwell, 690 F.3d 500, 527 (D.C. Cir. 2012) (Kavanaugh, J., dissenting); Lorenzo v. Securities and Exchange Commission, 872 F.3d 578, 598 (D.C. Cir. 2017) (Kavanaugh, J., dissenting).

Other Rulings

He has ruled for defendants on some claims of ineffective assistance of counsel, meaning a lawyer's work fell below basic standards. United States v. Nwoye, 824 F.3d 1129 (D.C. Cir. 2016); United States v. James, 719 Fed. Appx. 17 (Mem) (D.C. Cir. 2018).

He has also ruled for defendants in some sentencing error cases. United States v. Jones, 697 Fed. Appx. 2 (Mem) (D.C. Cir. 2017); United States v. Burnett, 827 F.3d 1108 (D.C. Cir. 2016).

The Bottom Line

Many people focused on how Kavanaugh would vote on social issues. The original article's view in 2018 was that there was a strong chance he would be a good justice on some, but not all, criminal issues.

Justice Gorsuch offered a comparison. In Sessions v. Dimaya (2018), the eight-member Court did not decide the case after the first argument and ordered it reargued after Justice Gorsuch joined. The original article predicted at the time that Gorsuch would break the tie in Dimaya's favor, and he did, casting the deciding vote for the defendant. His pro-defendant votes in some cases have surprised many people, and the article expected similar surprises from Kavanaugh if he was confirmed.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.