Now that Justice Brett Kavanaugh has been confirmed to the Supreme Court, it is helpful to turn to his judicial record while serving on the US Court of Appeals for the D.C. Circuit to anticipate how he will rule on the Court.
Regulatory agency independence
The predictable topics were covered in then-Judge Kavanaugh’s confirmation hearings—presidential power, abortion, marriage equality, gerrymandering. However, there is one issue that could be equally important to the future of the democratic experiment that was not drawn out of Kavanaugh at the hearings: How do the regulatory agencies enforce their regulations? Important examples of regulatory agencies include the Environmental Protection Agency, the Food and Drug Administration (which is meant to protect public health), and the Federal Trade Commission (whose role is to protect consumers and maintain a fair marketplace). It is important to the democratic process that these agencies remain independent, especially considering that there is an active special counsel investigation into Russian collusion and obstruction of justice by Trump and others.
Based on past statements, Kavanaugh would likely end the deference federal courts have traditionally given to regulatory opinion and interpretation and, in material ways, modify what is known as the doctrine of “Chevron deference.” Chevron deference is named for a 1984 Supreme Court case that involved a dispute over the Environmental Protection Agency’s interpretation of a provision of the Clean Air Act Amendments of 1977. Under Chevron, how an agency enforces and interprets its own statutes must be respected by the courts, unless that interpretation is “arbitrary, capricious, or manifestly contrary to the statute.” In other words, in a dispute, the court must defer to how an agency interprets its own laws, as long as it’s reasonable. Both Justice Kavanaugh and Justice Gorsuch are fierce critics of Chevron deference. Abandoning it would allow courts to assume control over executive branch agencies. Chevron deference prevents judges from striking down agency policies according to their own regulatory policy preferences. This is a central pillar of administrative law and ensures administrative agencies the power to enforce and adjudicate the laws that they create. Kavanaugh characterized Chevron as “nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch,” and inherently problematic for the court to parse out what is “arbitrary.” In what may prove to be a prophetic sentence, Kavanaugh wrote: “Perhaps in response to all of these criticisms, the Supreme Court itself has been reining in Chevron in the last few years.”
In 2011, Kavanaugh wrote an opinion defending the 2nd Amendment, characterizing certain gun regulations as unconstitutional. This was written in the wake of 2008’s District of Columbia v. Heller; the Supreme Court ruled for the first time that the 2nd Amendment protects an individual’s right to possess a firearm, unconnected with a militia, and bear arms for self-defense. However, the Court did conclude that the 2nd Amendment should not be understood as a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” noting that imposed conditions on the commercial sale of firearms would be considered “presumptively lawful.” While serving on the U.S. Court of Appeals for the D.C. Circuit Kavanaugh responded to an appeal and outlined why he found gun regulations unconstitutional. His opinion placed him outside the margins of the conservative mainstream (in 2011).
He found the ban on semi-automatic handguns to be unconstitutional given that there is “no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles;” he found the gun registration requirement unconstitutional; He objected to calling certain firearms “assault weapons,” accusing others of using a “rhetorical term,” and then suggested that handguns are the true assault weapons since they are “used far more often than any other kind of gun in violent crimes.” In an ambiguous portion of his dissent, he wrote that “In order to apply Heller’s test to this prohibition, we must know whether magazines with more than 10 rounds have traditionally been banned and are not in common use.” While it seems that he may be amenable to banning large-capacity magazines, he emphasizes two conditions: proof that such a ban exists in historical convention (even though this firearm technology is relatively modern), and proof that the public doesn’t use large-capacity magazines anymore. Kavanaugh shot down the argument that public safety concern in D.C. outweighed the constitutional right to bear arms.
A recent dispute may indicate how Kavanaugh will rule on abortion cases in the future, and whether he will complicate reasonable access to an abortion or proceed to make a direct attack to Roe v. Wade. Linda Greenhouse wrote an opinion piece for the New York Times summarizing the Supreme Court’s position on abortion leading up to a case last year, when a young immigrant woman (referred to as Jane Doe) was refused access to an abortion in a program administered by the Trump administration. Greenhouse explains how the Office of Refugee Resettlement dictates how federally funded organizations, such as the one that was housing Jane Doe, are run and and that they must ensure access to contraception and abortion. The ORR denied Jane Doe access to an abortion and detained her based on her status as an “undocumented unaccompanied minor,” challenging the Supreme Court precedent preserving the fundamental right of a woman to make an informed choice to pursue an abortion in an early stage (Roe v. Wade). Meanwhile, her third trimester was approaching, at which point an abortion would be illegal. In an unsigned order, presumably written by Kavanaugh, the state was given 11 days to find her a sponsor to take custody, so the government would not be seen as facilitating an abortion, nor be seen actively barring access to an abortion. However, the program reportedly had been looking for a sponsor for 6 weeks without success. Jane Doe ultimately won in appeals court and got an abortion the next day. Kavanaugh wrote a scathing dissent, arguing that the court created “a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.” Judge Millett, who ruled with the majority on the D.C. Circuit Court, responded: “Abortion on demand? Hardly. Here is what this case holds: a pregnant minor who (i) has an unquestioned constitutional right to choose a pre-viability abortion, and (ii) has satisfied every requirement of state law to obtain an abortion, need not wait additional weeks just because she—in the government’s inimitably ironic phrasing—‘refuses to leave’ its custody. That sure does not sound like ‘on demand’ to me. Unless Judge Kavanaugh’s dissenting opinion means the demands of the Constitution and Texas law. With that I would agree.”
Outside his judicial record, it is important to analyze his statements and behavior during a historic highly anticipated confirmation hearing; charged with sexual-assault allegations, Kavanaugh defended himself before the Senate Judiciary Committee, and was ultimately confirmed as a Supreme Court Justice. Both his defiant statements and angry temperament deserve scrutiny as part of a premeditated strategy to exploit the current polarized political climate ahead of the midterm elections. Kavanaugh denied the allegations and called the confirmation process a “national disgrace,” singling out the Democratic members of the committee for behavior he called “an embarrassment.” Despite a credible testimony from the accuser, Dr. Christine Blasey-Ford, Kavanaugh chose to characterize the hearings in this way: “This whole two week effort has been a calculated and orchestrated political hit fueled with apparent pent up anger about President Trump and the 2016 election, fear that has been unfairly stoked by my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups. This is a circus.”
When questioned by the committee, his temperament was combative and clearly angry. He has since apologized for his behavior in an op-ed for the Wall Street Journal, claiming he was an “independent, impartial judge,” and characterizing his behavior as a product of his anger. However, days before in an interview with Fox News, he was calm, mild-mannered and even-toned, insisting three times “I just want a fair process where I can be heard” when asked where he thought the contentious process regarding the allegations came from. There is a stark contrast between this interview and his testimony before the Senate Judiciary Committee, so much so that it calls into question his claim that his controversial testimony was a result of passion. Michael S. Rosenwald, journalist for the Washington Post, described a clear parallel with Justice Clarence Thomas’s 1991 confirmation hearing. Thomas, who was facing allegations of sexual harassment from a former employee, Anita Hill, accused the all-white judiciary committee of a “high-tech lynching for uppity blacks.” Thomas was able to turn his confirmation hearing into a question of race, also before midterm elections when senators were extremely sensitive to charges of racism in the wake of the Rodney King riots.
Kavanaugh chose to ignite the republican base to view challenges to his confirmation as a “conspiracy” from Democrats, placing pressure on senators to vote along party lines lest their base vote against them, and, in doing so, further polarizing the nation.