If you could grow a judge in a vat, and design every moment of their life to appeal perfectly to the Republican establishment, the man who would emerge fully-formed from that vat would be Brett Kavanaugh. A two-time Yale graduate, Kavanaugh clerked for the retiring Justice Anthony Kennedy, worked for Bill Clinton inquisitor Ken Starr, and served as one of President George W. Bush’s top White House aides.
Kavanaugh was a frequent opponent of President Barack Obama’s Environmental Protection Agency (EPA), and he ruled against abortion rights in one particularly heart-wrenching case. Judge Kavanaugh is smart, understands the inner workings of the federal government as well as any judge, and, if confirmed to replace Kennedy on the Supreme Court, is likely to play a major role in neutering agencies like the EPA and the Department of Labor.
Yet it is also worth noting that, when faced with conservative litigants seeking maximalist remedies from his court, Kavanaugh sometimes looked for narrow solutions. He would have allowed the Trump administration to delay the abortions to some patients, for example, without ruling that these same patients could be denied an abortion altogether. Judge Kavanaugh’s record indicates that he is very conservative, but that he may not be a nihilist in the vein of Neil Gorsuch.
If confirmed to the Supreme Court, Kavanaugh is likely to vote with the Court’s conservative bloc in nearly all cases. But he may hand conservatives incremental victories at times when they seek transformative change. The open question is whether Kavanaugh sought out incremental solutions because that is his natural preference, or because he was trying to appear relatively moderate in anticipation of a Supreme Court nomination.
“Deconstruction of the Administrative State.”
Trump largely delegated the task of identifying candidates for the Supreme Court to the conservative Federalist Society, and specifically to Federalist Society executive Leonard Leo. Beginning in the later part of the Obama presidency, this Society grew obsessed with a single issue — what former Trump adviser Steve Bannon referred to as the “deconstruction of the administrative state.”
If confirmed to the Supreme Court, Kavanaugh will not disappoint the Federalists.
Broadly speaking, Congress has the power to set a broad policy goal, and then delegate the task of implementing the specifics of that policy to a federal agency. The Clean Air Act, for example, requires certain power plans to use the best, cost effective technology available to reduce emissions, but leaves it to the EPA to determine what that technology is at any particular moment in time. A provision of the Affordable Care Act requires the Secretary of Health and Human Services to ensure that Obamacare health plans offer benefits similar to what a patient would receive from “a typical employer plan.”
When the EPA imposes binding rules on power plants requiring them to bring their technology in line with new developments, or when HHS creates new rules laying out what sort of benefits a “typical employer plan” currently offers, those rules are called “regulations.” And many of the Federalist Society’s closest allies on the bench want to deeply undercut every agency’s power to promulgate such regulations. Justice Clarence Thomas, in fact, would strip agencies of their power to regulate almost entirely, were it left to him.
Judge Kavanaugh wouldn’t go quite so far, but he would significantly weaken agencies’ regulatory authority. Dissenting in United States Telecom Association v. FCC, Kavanaugh claimed that the Obama-era FCC could not act to protect net neutrality because courts must apply a strong presumption that an agency lacks the authority to regulate whenever it takes a “major” policy action. Regulations that involve a great deal of money, that have a significant impact on the economy, that impact a lot of people, or that are subjects of significant attention are invalid unless Congress unambiguously gave the agency the power to act.
That may seem like a fairly sensible rule — why should an agency be able to take aggressive action without clear authority to do so? — but Kavanaugh’s actions in a different case suggest that he would apply this presumption against “major” rules quite rigidly. In West Virginia v. United States Environmental Protection Agency, a group of conservative states and power companies challenged the Obama administration’s Clean Power Plan — Obama’s most ambitious effort to combat climate change.
Here, the statute at issue — the Clean Air Act — is pretty unambiguous. It instructs the EPA to set “standards of performance for any existing source for any air pollutant,” and requires these standards to reflect “the degree of emission limitation achievable through the application of the best system of emission reduction.” The EPA determined that the best such system would be shifting power production away from dirty methods of generating electricity, such as coal, towards cleaner methods, such as gas, solar and electric.
At oral argument in this case, Kavanaugh fairly described the Clean Power Plan as a major rule. Yet he also appeared uninterested in the actual text of the Clean Air Act. As the Obama administration attorney defending the rule explained, “The word ‘system,’” as it is used in the Clean Air Act, “is a capacious word.” Nothing in the statute suggests that it does not include the ability to shift power production from one method to another.
Kavanaugh’s court never decided West Virginia, largely due to Trump’s election rendering the Clean Power Plan a dead issue. But Kavanaugh’s questions suggest that he wouldn’t even permit an unambiguous statute to delegate certain powers to the EPA.
Garza v. Hargan is one of the most Orwellian cases to reach the federal judiciary in a long time. The Trump administration literally attempted to hold undocumented minors prisoner in order to prevent them from obtaining abortions.
Though a majority of his court concluded that the government could not prevent pregnant undocumented minors from receiving an abortion while they were in government custody, Kavanaugh dissented. The thrust of his opinion is that the government could prevent a pregnant immigrant from receiving an abortion, at least temporarily, while they search for an “immigration sponsor” who can take custody of the immigrant — though Kavanaugh also acknowledged that, if a sponsor could not be found, “the Government will be required by existing Supreme Court precedent to allow the abortion.”
Nevertheless, while Kavanaugh recognized that, as a lower court judge, he could only push by so hard against the Supreme Court’s abortion precedents, he also described the abortion-seekers in an infantilizing tone. Those at issue in Garza were pregnant and had to “make a major life decision.” Moreover, they were “in custody” with “no support network.” For this reason, he argued, the government can properly force someone who is detained and pregnant to delay their abortion based on the mere possibility that someone might step forward to provide such a support network.
A right to discriminate
Last month, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court largely avoided the question of whether an anti-gay business owner could refuse to serve a same-sex couple because the baker objecting to doing so on religious grounds. It is likely that whoever is confirmed to fill Justice Kennedy’s seat will hold the deciding vote on this question.
Kavanaugh has not weighed in explicitly on the question of whether religion provides a license to violate anti-discrimination laws, but his vote in a birth control case suggests that he is sympathetic to people of faith who object to following certain laws on religious grounds.
In Priests for Life v. Department of Health and Human Services, Kavanaugh’s court considered Obama-era rules permitting religious employers who did not want to provide birth control coverage to their employees to refuse to do so, but only if they filled out a form which allowed their insurance company to make a separate arrangement with employees who wanted this coverage.
Kavanaugh objected to this fill-out-the-form solution. His proposed solution was to require religious objectors to submit a different kind of paperwork to the Secretary of Health and Human Services if they wished an exemption from their obligation to provide birth control coverage to their employees. The distinction between the form and the paperwork Kavanaugh proposed was not entirely academic — Kavanaugh’s solution would require the government to identify which insurer the religious employer used, a task that might require some investigation — but it does suggest that Kavanaugh is willing to split some fairly fine hairs to accommodate plaintiffs who raise religious objections.
Weaponizing the First Amendment
In recent years, the Supreme Court’s conservative bloc wielded the First Amendment as a sword to strike down policies with only a tangential impact on free speech. Citizens United, with its holding that corporations could spend unlimited amounts of money influencing elections, is a First Amendment case. As was a recent Supreme Court decision seeking to defund public sector unions.
Kavanaugh’s dissent in United States Telecom Association v. FCC, better known as the net neutrality case, suggests that he will be sympathetic to this effort. In that case, Kavanaugh argued that the FCC’s net neutrality rules violate two Supreme Court decisions from the 1990s holding that cable companies have a First Amendment right to refuse to carry certain channels.
The problem with this argument, as Judge Sri Srinivasan explained in a separate opinion, is that the FCC’s rules did not require internet service providers to carry unwanted content. Rather, they govern internet providers that “sell retail customers the ability to go anywhere (lawful) on the Internet” and that claim that “they will transport and deliver traffic to and from all or substantially all Internet endpoints.” The net neutrality rules, in other words, prevented an internet provider from saying that it would give its customers full internet access, but then slowing down certain websites and speeding up other ones.
Kavanaugh took an unusual approach in 2011, when he heard one of the many lawsuits claiming that the Affordable Care Act violates the Constitution. At oral arguments, Judge Kavanaugh appeared concerned that a decision striking down Obamacare, which relies on private health insurers to provide coverage to millions of individuals, could endanger Republican plans to privatize Social Security. After all, privatized Social Security was just another plan to require private citizens to purchase a financial product from a private company.
Ultimately, however, Kavanaugh wrote a dissenting opinion claiming that his court should have dismissed the case on jurisdictional grounds.