On Oct. 6, 2018, Brett Kavanaugh became the ninth sitting justice on the Supreme Court. Notwithstanding the controversy surrounding his confirmation, practitioners around the country need to adapt to the reality that Justice Kavanaugh is likely to sit on the court for many years to come. In his previous position on the U.S. Court of Appeals for the D.C. Circuit, then-Judge Kavanaugh adjudicated more than 1,500 cases and authored over 300 majority, concurring, or dissenting opinions. This body of work arguably provides the clearest insight into how Judge Kavanaugh might shape the Supreme Court’s jurisprudence in the coming years.

Regardless of what they think about Justice Kavanaugh’s record on other issues, criminal defense lawyers are likely to view his approach to the imposition of sentencing—the most impactful issue facing their clients who may find themselves convicted of federal offenses—as somewhat of a mixed bag. Thus, while Justice Kavanaugh has articulated concerns that the post-Booker regime has brought too much unpredictability to sentencing, his decisions have demonstrated deference to district judges. Fortunately, this deference may be helpful to defendants convicted of federal tax offenses since district judges commonly exercise their discretion to grant substantial downward variances from the applicable Sentencing Guidelines.

Trends in Sentencing Tax Offenders