By far the most important part of a Supreme Court Justice’s job is deciding what laws mean. Those laws may be provisions of the Constitution, or they may be federal statutes and rules, but it’s the same basic question. Conservatives talk a lot about the need for a judicial philosophy of reading those laws to mean what they were understood to say whenever the people’s elected representatives enacted them, because without such a philosophy, the Court is not implementing the laws but making up new ones without asking the voters.
But not everything a judge does, even on the Supreme Court, is simply reading the law. Because of that, it is reasonable to look at the judge’s broader record to learn what their values are, how they see the world, and how they see their job as judges. Courts decide questions all the time, at least as part of a given decision, that depend on their view of how the world works, how civil and criminal litigation works, and how the political process works. For example, I have argued previously that Justice Scalia’s political philosophy was – while not as important as his judicial philosophy – vital to his legacy on the Court.
Sometimes the interesting decisions in a judge’s record are the ones that show the judge pushing the envelope of how the courts ought to read the law, but sometimes they are also the ones that don’t conform to neat stereotypes about ideology and outcomes, especially when judges from similar ideological starting points reach differing conclusions. With that in mind, let’s look at Judge Brett Kavanaugh’s 2016 opinion in United States v. Nwoye.
The defendant, a woman named Queen Nwoye, had been convicted of conspiracy to commit extortion, arising from a scheme in which she and her boyfriend blackmailed an ex-lover of hers with threats of exposure of the affair. The scheme netted them $200,000. Nwoye didn’t dispute her involvement, but argued that she was abused by her boyfriend and acted under duress. The DC Circuit affirmed her conviction, finding that her testimony alone wasn’t enough evidence to justify the jury even being instructed on the elements of duress as a legal defense. So, she filed a second appeal, arguing that she had been denied her constitutional right to effective assistance of an attorney because her lawyer hadn’t introduced expert testimony on “battered woman syndrome” to support her own account of her boyfriend’s domination of her.
Ineffective-assistance challenges, like many of the things thrown routinely at the wall by desperate criminal defendants, are often unsuccessful. And you might expect a conservative judge to be unsympathetic to a claim that a psychological “syndrome” was a defense to a crime like extortion. Judge David Sentelle, a long-time conservative member of the DC Circuit, dissented and would have affirmed the conviction again. But Judge Kavanaugh ruled in Nwoye’s favor.
As Judge Kavanaugh’s opinion noted, Nwoye was physically free to leave her abusive boyfriend, a man named Osuagwu, but was held in a state of psychological terror, surveillance, and financial control:
Osuagwu would frequently slap Nwoye with his hand, hit her with his shoe, and beat her on her face and body. Later, Osuagwu’s physical violence escalated. Osuagwu beat Nwoye when she initially refused to introduce him to [the target of the blackmail plot]. Whenever she objected to the extortion, Osuagwu would beat her “like a drum.” And on one occasion when Nwoye did not play her part in the extortion scheme, Osuagwu slapped Nwoye and threatened to “strangle” and “kill” her if the scheme were exposed.
Nwoye further testified that Osuagwu exerted financial and psychological control over her. Osuagwu forced Nwoye to hand over her ATM card and PIN. In addition, Nwoye and her children lived with Osuagwu at Osuagwu’s home in Maryland. Nwoye testified that Osuagwu — the only person who knew that she lived at the house — would often threaten to kill Nwoye and bury her inside the house. Nwoye also testified that she was afraid to report Osuagwu to the police because Osuagwu had told her that he was a former FBI agent.
At the same time, Nwoye’s testimony revealed that Osuagwu did not have direct physical control over Nwoye at all times. While Nwoye attended nursing school or worked at a hospital for three days a week, she was apart from Osuagwu. And Osuagwu spent at least a few days in California while Nwoye remained in Maryland.
But even while they were apart, Osuagwu constantly monitored Nwoye. He forced Nwoye to keep her phone with her and demanded that she answer promptly, even going so far as to require Nwoye to wear a Bluetooth earpiece during class at nursing school.
Judge Kavanaugh noted the development since the 1970s of the theory of “battered woman syndrome” to explain the pattern of “psychological paralysis” and “learned helplessness” that can keep women from escaping abusive relationships, and cited a Justice Department report showing the common use of expert testimony on the syndrome as well as other federal appellate courts finding that it can be admissible as evidence in appropriate cases.
A defense of duress has two elements: “(i) that [the defendant] acted under an unlawful threat of imminent death or serious bodily injury and (ii) that there was no reasonable alternative to participating in the” crime. Noting that the use of a battered-woman defense had not previously been accepted in the DC Circuit, Judge Sentelle would have agreed with the district court that it did not amount to ineffective assistance of counsel for Nwoye’s lawyer not to pursue a “pioneering” defense. But Judge Kavanaugh disagreed, observing that the defense had been accepted by many other courts. And this is where his analysis (though backed by cites to cases and academic studies) leaves the realm of just reading precedents, and gives us some insight into his worldview:
Reasonableness — under both the imminence prong and the no-reasonable-alternative prong — is not assessed in the abstract. Rather, any assessment of the reasonableness of a defendant’s actions must take into account the defendant’s “particular circumstances,” at least to a certain extent…Examination of the particulars of the duress defense shows that expert testimony on battered woman syndrome can indeed identify relevant aspects of a battered woman’s particular circumstances…Remarks or gestures that may seem harmless to the average observer might be reasonably understood to presage imminent and severe violence when viewed against the backdrop of the batterer’s particular pattern of violence….
Jurors faced with testimony from a battered woman concerning her abuse and its effects may doubt the testimony because they do not believe that a woman subject to such abuse would stay with her abuser without alerting police or others. Expert testimony on battered woman syndrome could have helped Nwoye “dispel the ordinary lay person’s perception that a woman in a battering relationship is free to leave at any time.” [quoting a California opinion by his DC Circuit colleague Judge Janice Rogers Brown]
Judges face litigants all the time who are sympathetic or unsympathetic, and Nwoye could be seen either way – as a battered woman or a blackmailer. But what is more important to the outcome is that Judge Kavanaugh was empathetic, able to look at the duress defense both from the perspective of the battered woman’s fear of leaving and the perspective of jurors asking the common-sense question “why didn’t she leave?” His conclusion was that the jury would stand a better chance at seeing things from her point of view if they heard from an expert, and that a competent defense lawyer would have tried to help them do that.
That’s the kind of judge Brett Kavanaugh is.