Another Surprisingly Subversive Justice

Another Surprisingly Subversive Justice

Upon being nominated to the Supreme Court, Brett Kavanaugh said he had "witnessed firsthand" Donald Trump’s "appreciation for the vital role of the American judiciary." That claim raised some eyebrows, given the president’s tendency to question the authority of judges who reach conclusions he does not like. Kavanaugh, by contrast, clearly understands the importance of an independent judiciary as a check on the other branches of government. His readiness to perform that function as a judge on the U.S. Court of Appeals for the D.C. Circuit is reassuring, especially since the man who picked him for the Supreme Court seems to know little and care less about the legal principles that protect liberty and thwart tyranny. One of those principles is the presumption that people should not be convicted of crimes they did not realize they were committing. Based on that presumption, Kavanaugh dissented from a 2012 decision upholding a bank robber’s conviction for carrying a machine gun in the course of a violent crime. "The majority opinion holds that a person who committed a robbery while carrying an automatic gun—but who genuinely thought the gun was semi-automatic—is still subject to the 30-year mandatory minimum sentence," he wrote. "The majority opinion thus gives an extra 20 years of mandatory imprisonment to a criminal defendant based on a fact the defendant did not know ." That same year, Kavanaugh wrote the majority opinion that overturned a military commission’s conviction of Salim Hamdan, Osama bin Laden’s driver, for providing material support […]

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