Brett Kavanaugh was ordained as Associate Justice on the Supreme Court of the United States in late 2018. Having served on the United States Court of Appeals, District of Columbia Circuit, for approximately 11 years, Kavanaugh was added to President Trump’s list of potential nominees for Supreme Court Justice in late 2017. His strong academic credentials; a B.A. from Yale College in 1987, and a J.D. from Yale Law School in 1990; along with his pristine record in conservative and legal circles, allowed him to stand out amongst other candidates.
After graduating from law school, Kavanaugh would go on to serve as a law clerk for three judges, one of which was Justice Anthony M. Kennedy of the U.S. Supreme Court. While serving Justice Kennedy, he acted as an attorney for the Office of the Solicitor General of the U.S., and subsequently acted as Associate Counsel in the Office of Independent Counsel from 1994 to 1997. Kavanaugh went on to serve as a partner in the Washington, D.C. law firm Kirkland & Ellis from 1997 to 1998 and from 1999 to 2001. He continued his residency in Washington acting as Associate Council and later Senior Associate Council for President George W. Bush from 2001 to 2003. After serving as Assistant to the President and Staff Secretary for President Bush from 2003 to 2006, he was appointed to the U.S. Court of Appeals in 2006. Brett Kavanaugh took his seat on the Supreme Court of the U.S. on October 6, 2018.
Despite the absence of any public statements made on the topic of abortion, Kavanaugh’s dissenting opinions on abortion related cases do give us a glimpse into his political and judicial views on the topic. His dissent in the case Garza v. Hargon, where the appeals court allowed a 17-year-old, undocumented immigrant, in immigration detention, abortion services without delay, explained that, while the appeals court had to follow the precedent set by the Supreme Court’s ruling on abortion, Roe v. Wade, the ruling did leave room for them to apply “reasonable regulations” as long as they pose no undue burden. The opinion Kavanaugh wrote further went on to say that the government had not been sound in its decision and had wrongly expanded rights previously unavailable to undocumented immigrant minors.
Regulatory and Executive Power
The D.C. Circuit Court that Kavanaugh presided over often dealt with administrative law cases, reviewing the decisions of administrative agencies. Among the 286 cases he wrote opinions on, over 122 of them involved regulatory agencies. Kavanaugh’s dissent is notable in cases such as the White Stallion Energy Center v. EPA, which supported the EPA in its ability to regulate power plants, regardless of cost, and the PHH Corp. v. Consumer Financial Protection Bureau, which took a similar stance on the CFPB’s ability to regulate. Furthermore, outside of his regular caseload, Kavanaugh wrote a law review article detailing his negative view of what is called the Chevron deference, a principle that says an agency’s interpretation of its power should be deferred to in court, so long as it’s reasonable. On the subject of executive power, Kavanaugh wrote a dissenting opinion in the case Free Enterprise Fund v. Public Company Accounting and Oversight Board (PCAOB), which had upheld the structure of the PCAOB, claiming that the decision “effectively eliminated any presidential power to control” the board’s regulatory functions.
Kavanaugh, when ruling on cases brought by detainees at Gunatánamo Bay, has usually ruled in favor of the government and their ability to hold people in wartime detention despite weak evidence tying them to terrorist activity. This has occurred in cases such as Al-Adahi v. Obama, Al-Binhani v. Obama, Uthman v. Obama, Omar v. McHugh, and Kyemba v. Obama. In the case Al-Rahim v. United States, Kavanaugh dissented, writing that his court didn’t have jurisdiction over challenges brought by defendants until after a military tribunal had issued their final judgement. Similarly, in Al Bahlul v. United States, Kavanaugh wrote, going further than his colleagues, that international law should not be enforced as a constraint against the actions of the legislative and executive branches on tribunals.
According to BBC, “Kavanaugh was reportedly the preferred choice of White House advisor Stephen Miller, the iron fist behind Mr. Trump’s immigration policy”. This indicates that Kavanaugh has hardline positions on immigration, and this is reflected in his record of dissenting opinions on immigration related cases. In 2008, Kavanaugh wrote the dissenting opinion for the case Fogo de Chao Holdings Inc. v. U.S. Department of Homeland Security, voicing that undocumented workers should not be able to participate in labor union elections. In Fogo de Chao Holdings Inc. v. U.S. Department of Homeland Security, Kavanaugh argued in the dissenting opinion that a Brazilian style restaurant, who tried to bring a Brazilian chef to the US should not be allowed to do so, as a precedent of importing cheap labor would cause broader economic problems.
Kavanaugh, in the case Priests for Life v. Dep’t of Health and Human Services, objected to a measure within the Affordable Care Act that required employers to provide insurance to their workers and for insurers to cover contraception. An exemption was put in place, to cover the costs of contraception, for employers who had disagreements with the law on religious grounds. Despite this, religious organizations believed that using the exemption would still make them complicit in supporting contraception usage. While the court objected to their argument, Kavanaugh’s dissent claimed that forcing employers to use the exemption, at punishment of a fine, violated their religious liberty, despite conceding the Supreme Court’s precedent indicating that the federal government had “a compelling interest in facilitating access to contraception for the employees of these religious organization”. His opinion on the matter, however, was clear: “when the Government forces someone to take an action contrary to his or her sincere religious belief or else suffer a financial penalty, the Government has substantially burdened the individual’s exercise of religion”.
In Heller v. District of Columbia, the appeals court upheld a District of Columbia law that banned the possession of semiautomatic rifles and required the gun owners to register their weapons. Kavanaugh, however, dissented from this ruling and wrote on the unconstitutionality of the ban. Furthermore, he argued that, because registration of all lawfully owned firearms had not been traditionally required, that should be struck down too.
Writing the opinion for a three-judge panel on the case RNC v. FEC, Kavanaugh upheld limits on contributions made to political parties that were set by a 2002 campaign-finance reform law. He discussed that the legal precedent on the issue maintained that those limits are consistent with the First Amendment, and that a lower court, such as the one he was a part of, does not have the authority to refine or clarify a Supreme Court ruling. Kavanugh, in Bluman v. FEC, also upheld a restriction put on foreign nationals that are within the US from spending money towards political campaigns.
- Current Member Biographies – Supreme Court of the United States
- Brett Kavanaugh: Trump Supreme Court pick under microscope – BBC
- Brett Kavanaugh – Biography
- Kavanaugh on immigration, labor – Politico
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