Judge Kavanaugh and justiciability

Judge Kavanaugh and justiciabilityAaron Nielson is an associate law professor at Brigham Young University and the weekly author of D.C. Circuit Review–Reviewed at the Notice & Comment Blog. The U.S. Court of Appeals for the District of Columbia Circuit is an unusual court. Because it disproportionately hears lawsuits involving the United States, it often wades into the “famously […]

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Judge Kavanaugh and justiciability

Aaron Nielson is an associate law professor at Brigham Young University and the weekly author of D.C. Circuit Review–Reviewed at the Notice & Comment Blog.

The U.S. Court of Appeals for the District of Columbia Circuit is an unusual court. Because it disproportionately hears lawsuits involving the United States, it often wades into the “famously murky” waters of the political-question doctrine, as well as the equally murky doctrines of standing, final agency action, and ripeness and mootness. In fact, the local rules require parties in “direct review” cases—cases in which challenges to an administrative agency action must be brought directly in the D.C. Circuit, instead of in a district court first—to address standing. All of these issues involve questions of justiciability: whether, as a threshold matter, a federal court has the authority at all to decide the legal merits of a case. I can attest, moreover, that the D.C. Circuit takes justiciability seriously. When I was a clerk, a judge promised to take any clerk to lunch who found a meritorious, unbriefed justiciability issue.

It is safe to say that Judge Brett Kavanaugh has spent untold hours thinking about justiciability. When I teach the political question doctrine, I assign the en banc decision in El-Shifa Pharmaceutical Industries Co. v. United States, a case I discuss below about a 1998 U.S. missile strike on a Sudanese pharmaceutical plant. Kavanaugh’s concurrence is well worth your time.

For this post, I’ve been asked to survey Kavanaugh’s justiciability opinions and consider how his confirmation might change the Supreme Court’s approach to these issues. I don’t think he would change it all that much. For one thing (to be sure, with some notable exceptions), there is often a great deal of consensus among the justices on justiciability, so even if Kavanaugh were a revolutionary (and he’s not), he wouldn’t be the swing vote anyway. I’m also not sure there would be much difference between Kavanaugh and Justice Anthony Kennedy for many of these kinds of cases, so even if the court were divided, a Kennedy/Kavanaugh switch wouldn’t shift things. Even so, Kavanaugh’s justiciability opinions merit a read because they show his mind at work.

Article III standing

Kavanaugh has addressed standing many times during his tenure on the D.C. Circuit. “Standing” (and this is a simplification) is the constitutional requirement that before a court can decide the merits of a plaintiff’s legal claim, the plaintiff must show that it is likely that the defendant caused or will cause an actual injury to the plaintiff. In other words, in lawsuits challenging regulations—the D.C. Circuit’s bread and butter—it’s not enough that a person, or a public interest group, or a business is merely upset with a new regulation or believes the regulation is unlawful. Whether a regulation is likely to cause some actual injury can be a very tricky question, but one with high stakes: If a plaintiff lacks standing, the court cannot constitutionally hear the plaintiff’s legal claims, no matter how meritorious. My sense is that although Kavanaugh enjoys thinking through standing puzzles, he understands the stakes for the litigants of a ruling on standing and tries to keep his analysis grounded in common sense.

Even when Kavanaugh rejects a claim, he sometimes uses his discussion of standing to show that he has heard the plaintiff’s argument and taken it seriously. In Howard R.L. Cook & Tommy Shaw Found. ex rel. Black Employees of Library of Cong., Inc. v. Billington, a group of employees sued the Library of Congress for not extending to them the same benefits (such as meeting space, etc.) that it extended to other employee groups. While holding that the group failed to state a claim, Kavanaugh (joined by Judges David Tatel and David Sentelle) stressed that it had standing to sue and that its concern merited meaningful recognition:

The Library argues that plaintiffs have failed to allege an injury in fact because “the privileges to employees who participate … in recognized organizations are insubstantial.” If the Library views the privileges of recognition as so insubstantial, perhaps it would have been better off granting recognition and avoiding litigation. In fact, however, the benefits of recognition are not trivial, and denial of those benefits constitutes an injury in fact.

Nor is this an isolated example. In Coalition for Mercury-Free Drugs v. Sebelius, Kavanaugh (joined by Judges Judith Rogers and Stephen Williams) rejected on standing grounds a challenge to the Food and Drug Administration’s decision to allow “vaccines that contain thimerosal, a mercury-based preservative” but went out of his way to “recognize plaintiffs’ genuine concern.” And in Newdow v. Roberts, the majority dismissed a challenge to the use of the phrase “so help me God” in presidential inaugural ceremonies. Kavanaugh concurred in the judgment, but he would have held that the plaintiffs had standing.

And even when he has sided against challengers, he has kept the door open for them to take another shot. In Public Citizen, Inc. v. National Highway Traffic Safety Administration, Public Citizen maintained that it had standing to challenge a tire-safety standard on the ground that the standard would increase the risk of injury to the organization’s members. Kavanaugh (joined by Judges Sentelle and Raymond Randolph) disagreed: “Under Public Citizen’s theory of probabilistic injury, after an agency takes virtually any action, virtually any citizen—because of a fractional chance of benefit from alternative action—would have standing to obtain judicial review of the agency’s choice.” Nonetheless, Kavanaugh gave Public Citizen another chance to see if it could fit within a narrower theory; Sentelle declined to “join the majority’s decision to allow Public Citizen a further attempt to establish standing.”  The following year, the court (in a per curiam decision) again concluded there was no standing.

Kavanaugh’s approach to standing is generally pretty practical. In Energy Future Coalition v. Environmental Protection Agency, biofuel manufacturers challenged the EPA’s refusal to allow a biofuel to be used as a test fuel. Even though the regulation in question was directed at vehicle manufacturers, not biofuel manufacturers, Kavanaugh (joined by Tatel and Judge Cornelia Pillard) found standing:

If the Government prohibits or impedes Company A from using Company B’s product, does Company B have standing to sue? … [S]uppose the District of Columbia bans or makes it harder for concession stands to sell hot dogs. Does a local hot dog manufacturer have standing to sue? … In such cases, both Company A and Company B are an object of the action (or forgone action) at issue, so there is ordinarily little question that they have standing under Lujan. So it is here.

Similarly, in Hall v. Sebelius, Kavanaugh (joined by Judge Douglas Ginsburg) opened his opinion this way:

This is not your typical lawsuit against the Government. Plaintiffs here have sued because they don’t want government benefits. They seek to disclaim their legal entitlement to Medicare Part A benefits for hospitalization costs. Plaintiffs want to disclaim their legal entitlement to Medicare Part A benefits because their private insurers limit coverage for patients who are entitled to Medicare Part A benefits.

Kavanaugh ruled against the plaintiffs on the merits (as it turns out, you can turn down the money, but not the entitlement to the money—although Judge Karen Henderson disagreed), but he concluded that they had standing “because their private insurance has been curtailed as a direct result of their legal entitlement to Medicare.” Still, Kavanaugh does not think common sense is a substitute for record evidence supporting a particular standing theory. In Communities for a Better Environment v. EPA, Kavanaugh (joined by Williams and Judge Janice Rogers Brown) rejected on standing grounds a challenge to the EPA’s refusal to set a secondary standard for carbon monoxide because he agreed with the agency that the connection to climate change was too speculative: “For the reasons identified by EPA, petitioners’ theory of causation is simply a bridge too far given the current record.”

To be sure, not everyone agrees with every Kavanaugh standing opinion. In In re Navy Chaplaincy, a group of Protestant chaplains sued to enjoin the Navy from allegedly using its retirement program to favor Catholic chaplains. Kavanaugh (joined by Judge Laurence Silberman) concluded there was no standing, explaining (among many other points; this one should be read in full) that “mere personal offense to government action does not give rise to standing to sue.” Rogers sharply dissented: “The court ignores all of this precedent in adopting the novel conception that appellants are not harmed for purposes of standing under the Establishment Clause unless the Navy itself directly uses religious words or symbols as occurred in the religious display cases.”

Kavanaugh also does not always agree with his colleagues. In Morgan Drexen, Inc., v. Consumer Financial Protection Bureau, Rogers, joined by Pillard, dismissed a challenge to the CFPB’s authority on standing grounds. In his short dissent, Kavanaugh stated that the CFPB “is regulating a business that [the attorney] engages in. That is enough for standing. We have a tendency to make standing law more complicated than it needs to be.” And in Grocery Manufacturers Association v. EPA, he disagreed with Sentelle, who ruled that members of the food industry lacked prudential standing (a form of standing that isn’t constitutionally based) to challenge an EPA ethanol rule because it would increase demand for corn: “This is Economics 101 and requires no elaborate chain of reasoning.” (Tatel’s short concurrence is also worth a read.)

The political question doctrine

At least as a matter of vote tallies, it is also unlikely that a Justice Kavanaugh would meaningfully change the Supreme Court’s approach to the political question doctrine (i.e., the doctrine under which some courts will not decide some questions that should be addressed by the other branches). In Zivotofsky v. Clinton, Chief Justice John Roberts (writing for a good chunk of the court) held that determining whether “Jerusalem, Israel” could be included as a birthplace location on a passport was justiciable. On the D.C. Circuit, Kavanaugh—joined by Rogers and Ginsburg—voted (unsuccessfully) to rehear en banc the decision that the Supreme Court later reversed. After Zivotofsky, the Supreme Court’s path may be set for a while.

That said, Kavanaugh’s analysis may win some adherents. In El-Shifa Pharmaceutical Industries Co. v. United States, mentioned above, Kavanaugh—joined in full by then-Chief Judge Sentelle and in part by Ginsburg and Rogers—concurred in an en banc judgment that dismissed claims brought by a pharmaceutical company and its owner after a factory in Sudan was destroyed by a U.S. missile strike. Arguing that the suit should have been dismissed for failure to state a claim rather than on justiciability grounds, Kavanaugh strongly disagreed with both the majority’s decision to apply the political question doctrine and its analysis:

The key point for purposes of my political question analysis is this: Plaintiffs do not allege that the Executive Branch violated the Constitution. Rather, plaintiffs allege that the Executive Branch violated congressionally enacted statutes that purportedly constrain the Executive. … If a court refused to give effect to a statute that regulated Executive conduct, it necessarily would be holding that Congress is unable to constrain Executive conduct in the challenged sphere of action. … Applying the political question doctrine in statutory cases  … would systematically favor the Executive Branch over the Legislative Branch.

Candidly, I’m not sure who is right in El-Shifa; that’s why it is a good case to assign students. And Kavanaugh’s analysis should give pause to those who say he is reflexively pro-executive. The main point of his opinion in El-Shifa is to stress that Congress has a role too.

In Harbury v. Hayden, Kavanaugh (joined by Randolph and Williams) affirmed a dismissal of claims brought by a woman against various U.S. government officials allegedly involved in killing her husband during Guatemala’s civil war in the 1990s. Noting that “[t]he political question doctrine is an important tenet of separation of powers and judicial restraint,” albeit one “notorious for its imprecision,” Kavanaugh applied the doctrine because he concluded that D.C. Circuit precedent compelled the result.

Final agency action

In recent years, the Supreme Court has issued two important—and (mostly) unanimous—decisions on what is reviewable final agency action: U.S. Army Corps of Engineers v. Hawkes Co., Inc. and Sackett v. EPA. In both, the Supreme Court expanded the scope of reviewable decisions. Given that uniformity, it is again unlikely that a Justice Kavanaugh would make much of a difference here.

Nonetheless, Kavanaugh has addressed the topic, and he takes the final agency action requirement seriously. His most important case on this subject may be In re Murray Energy Corp. There, a number of petitioners, including a coalition of states, tried to challenge the EPA’s Clean Power Plan before it was finalized. Kavanaugh (joined by Judge Thomas Griffith) concluded that “[p]roposed rules meet neither of the two requirements for final agency action.” Henderson wrote separately. Similarly, in National Mining Association v. McCarthy, a mining association sought review of an EPA guidance memo. Kavanaugh (joined by Griffith and Judge Sri Srinivasan) concluded there was no final agency action: “One might think that an agency memo entitled ‘Final Guidance’ would be final. But that would be wrong, at least under the sometimes-byzantine case law. An agency action is final only if it is both ‘the consummation of the agency’s decisionmaking process’ and a decision by which ‘rights or obligations have been determined’ or from which ‘legal consequences will flow.’”

Ripeness and Mootness

Finally, I also doubt that a Justice Kavanaugh would fundamentally change the Supreme Court’s approach to ripeness and mootness. “Ripeness” essentially asks whether it’s too early for a court to decide the merits of claim, and “mootness” essentially asks whether it’s too late. Nonetheless, he has issued several noteworthy opinions on the subject.

His most significant ripeness decision is probably State National Bank of Big Spring v. Lew, which reflects a nuanced approach to justiciability. Kavanaugh (joined by Rogers and Pillard), confronted challenges to “the constitutionality of various provisions of the Dodd-Frank Act.” On one hand, he concluded that “a regulated entity” need not violate a law to challenge the constitutionality of an agency’s structure, nor the constitutionality of the president’s appointment of the agency’s director. On the other hand, he rejected the notion that challengers could attack the possible future exercise of an allegedly unconstitutional power when the question of how that power might be used was speculative.

Another noteworthy opinion is Kavanaugh’s dissent in American Bird Conservancy, Inc. v. Federal Communications Commission (per curiam, Rogers and Judge Merrick Garland). The petitioners challenged the agency’s approach to communication towers. Yet the FCC was still evaluating the effects of those towers on birds. Kavanaugh compared the situation to one in which a petitioner challenges an order while the agency is still considering a petition for reconsideration and stressed that “[d]ismissing this case on ripeness grounds would serve the interests of judicial economy, permit the Executive Branch to carefully re-examine and resolve environmental issues related to communications towers and birds on a nationwide basis, and impose minimal hardship on the petitioners who are themselves participating in the nationwide rulemaking proceeding.”

As to mootness, in Hamdan v. United States, Kavanaugh (joined by Sentelle and Ginsburg) addressed whether an appeal of a conviction by a military tribunal was moot once the detainee was released from custody. Kavanaugh analogized to a conviction in an ordinary court, in which case a direct appeal is generally not mooted by release. Ginsburg concurred to note his agreement with Kavanaugh’s reading of precedent but also his discomfort with that precedent. (This opinion presumably will receive some attention for its merits analysis; the mootness aspect, however, is important too.)

Conclusion

There is a lot more that could be said, but this post is long enough. Unless you are deep in the weeds of “Admin Law” and “Fed Courts” (give it a try; it isn’t a bad place to be), justiciability is not the jazziest topic. Here is my bottom-line assessment: Although not everyone will agree with all of his justiciability opinions, Kavanaugh’s views on the whole strike me as pretty mainstream. And that is not a bad thing. Justiciability can be fuzzy (sometimes to a fault), but the D.C. Circuit takes it seriously, and Kavanaugh is no exception. Should he be confirmed, I expect that trend will continue.

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With Kavanaugh hearing set, Senate releases records

With Kavanaugh hearing set, Senate releases recordsAlthough the battle over records related to Judge Brett Kavanaugh’s tenure in the George W. Bush White House continues, the Senate Judiciary Committee has recently released over 100,000 pages of documents. The first batch of documents, released last week, contained over 5,000 pages of emails from Kavanaugh’s stint as an associate White House counsel, a […]

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With Kavanaugh hearing set, Senate releases records

Although the battle over records related to Judge Brett Kavanaugh’s tenure in the George W. Bush White House continues, the Senate Judiciary Committee has recently released over 100,000 pages of documents. The first batch of documents, released last week, contained over 5,000 pages of emails from Kavanaugh’s stint as an associate White House counsel, a position in which he served from January 2001 until 2003. Hundreds (if not thousands) of pages from the initial batch of documents are completely nonsubstantive, made up of – for example – email headers from mass emails and computerized legal alerts to which Kavanaugh subscribed. Many other emails are somewhat cryptic, giving the distinct impression that staffers were trying to avoid getting into too much substantive discussion over email. But the emails also provide a detailed look into the operation of the White House counsel’s office, including the extent to which the lawyers’ work is often enmeshed with politics. And the emails are likely to provide fodder for members of the Senate Judiciary Committee to question Kavanaugh about his role in the Bush administration’s war on terror when the confirmation hearing begins in early September.

The emails indicate that the White House counsel’s office runs, as another White House attorney described it in a draft of a speech that appeared in Kavanaugh’s emails, much like a small law firm. At the beginning of the Bush administration, the “managing partner” was Alberto Gonzales, a former Texas judge; an early email appeared to instruct White House lawyers not to schedule meetings with Gonzales over lunch because “Al” “doesn’t do lunch.” Another email indicated that when a new lawyer in the office started, the veterans tried to offload the less desirable parts of their portfolios onto the newcomer.

While Kavanaugh was a White House lawyer, his portfolio was eclectic, ranging from participating in the Bush administration’s efforts to select new federal judges and ensure their confirmation to being the office’s in-house ethics expert. Kavanaugh fielded a steady drumbeat of questions regarding ethics issues, involving everything from approving invitations for political events at the White House to signing off on what kind of stationery to use for graduate school recommendations and the use of private planes by White House officials for political travel. Perhaps ironically, the preservation of presidential records was also part of Kavanaugh’s portfolio, with another White House lawyer jokingly referring to him as “Mr. Presidential Records”: Kavanaugh weighed in, for example, on whether White House official Josh Bolten could have his Lotus Notes email database downloaded to a CD before his email was converted to Outlook.

After the September 11, 2001, terrorist attacks, Kavanaugh’s work came to include a variety of issues related to the country’s response. He was involved in or received requests regarding compensation for victims of the attacks, liability for airplane manufacturers, and (maybe most significantly) the drafting of talking points for anti-terrorism laws. Kavanaugh received an email about John Walker Lindh, the American captured as an enemy combatant in Afghanistan, from Ben Wittes, now a prominent national security expert who was at the time a member of the editorial board at the Washington Post; Kavanaugh passed off Wittes’ question to others, but Kavanaugh clearly seemed aware of the situation. Kavanaugh also worked on the USA Patriot Act, a law passed in the wake of the attacks that gave the government (among other things) new surveillance powers – a fact that came out in the context of an email about a Capitol Hill staffer applying to the White House counsel’s office. (Kavanaugh’s emails also show that, after the September 11 attacks, he was one of many senior White House staffers who received an email from Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas. Ginni Thomas, then at the Heritage Foundation, wrote that her “prayers and support are heightened for each of you in the Bush administration. It is my personal belief that God has you here for a reason.”)

Although Kavanaugh was acting as a White House lawyer, his work often overlapped closely with politics. One email, for example, suggests that Kavanaugh was involved in meetings regarding “asset deployment,” which a 2007 Washington Post article described as a strategy of coordinating official announcements, trips and grants to promote the Bush administration’s  agenda and re-election. And in an email to Don Willett, then an official at the Department of Justice but now a judge on the U.S. Court of Appeals for the 5th Circuit best known for his prolific use of Twitter while a justice on the Texas Supreme Court, Kavanaugh asked whether any “Clinton judicial appointees who had been state judges” had received contributions from Enron, the energy company that collapsed after its widespread accounting-fraud scheme became public.

The emails also show that a day in the life of a White House lawyer was a long one: Kavanaugh often began emailing shortly after 6 a.m. and would continue to do so until after midnight. In a 2002 email, Kavanaugh summarized a typical day, which started with a senior staff meeting at 7:30 a.m. and continued with several more meetings (including a “message meeting”).

The emails sometimes reflect the minutiae of day-to-day life working in the White House, including updates on parking passes, efforts to expand the capacity of Kavanaugh’s voicemail or to hunt down library  books checked out of the Department of Justice, bills for the food that Kavanaugh ate during a stay at Camp David (“I had 3 meals and some drinks and snack out of the refrigerator,” wrote Kavanaugh) and arrangements to interview paralegals. Other emails are strictly personal, such as those from Ashley Estes, Bush’s personal secretary, whom Kavanaugh would marry in 2004, inquiring about when Kavanaugh might be free for dinner or whether she should RSVP for a Republican National Committee gala.

This post was originally published at Howe on the Court.

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Empirical SCOTUS: The big business court

Empirical SCOTUS: The big business courtThe current Supreme Court is friendly toward big business. How friendly? If the court’s trajectory continues, perhaps as friendly as any court dating back to the Lochner era, when laissez-faire policies permeated the court’s rulings. Prominent scholars, most notably Lee Epstein, William Landes and Richard Posner, have found empirical support for the proposition that the […]

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Empirical SCOTUS: The big business court

The current Supreme Court is friendly toward big business. How friendly? If the court’s trajectory continues, perhaps as friendly as any court dating back to the Lochner era, when laissez-faire policies permeated the court’s rulings. Prominent scholars, most notably Lee Epstein, William Landes and Richard Posner, have found empirical support for the proposition that the current court is more pro-business than previous iterations. (That study was recently updated through the 2015 term.) This post uses data from the 2015 through 2017 terms to add to this discussion. In particular it seeks to locate the trajectory of the court with the possible addition of Judge Brett Kavanaugh for the October 2018 term. Although the court’s right and left sides found themselves on opposite ends of business rulings during the October 2017 term, we might expect an even stronger pro-business court next term with the addition of another likely predictably pro-business justice in Kavanaugh.

The last three years

Not that Justice Anthony Kennedy tended to clash with conservative positions in business rulings. On the contrary, Kennedy authored many decisions that enhanced the power of businesses, including the court’s decision giving corporations First Amendment free speech protection in Citizens United v. Federal Election Commission. Still, for the 2015 through 2017 terms, Kennedy was less pro-business than several of his conservative counterparts.

Click graph to enlarge.

This figure was created by coding all of the court’s orally argued cases from the October 2015 through 2017 terms as focused on a business interest or not and then narrowing the scope to cases that pitted a clear business interest against a contrary interest, thus excluding cases with dueling business interests. Sixty-six cases met the narrowed criteria that underlie the construction of the figure above.

The next figure examining majority opinion authorship in pro/anti-business decisions corroborates this account of greater recent conservative support for business interests.

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Three of the more conservative justices – Chief Justice Roberts and Justices Samuel Alito and Neil Gorsuch — only authored pro-business majority opinions during this period within this set of cases. Kennedy was the only conservative justice to write more anti- than pro-business opinions during this period.

An even bigger push for business

While the court continued its pro-business trajectory during the past three terms, it also increased its pro-business momentum over this period. This increase is evident based on the court’s fraction of pro-business rulings. The following figure looks at the number of cases the justices heard across the 2015 through 2017 terms that contained pro- and anti-business interests as well as the percentage of these decisions that were pro-business.

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Although the court heard fewer business-related cases in the 2017 term, it heard fewer total cases last term as well, making the downshift in business cases more proportional to the court’s actual merits docket. With this curtailed caseload, the court ruled 81.25 percent of time in favor of pro-business interests. Even in the few cases in which the court ruled against business interests, the downstream effects on business interests may not necessarily be negative in the aggregate. One example of this is the court’s decision in South Dakota v. Wayfair. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner in this case.] Although the court’s immediate holding allowed states to tax out-of-state businesses, this decision may end up enhancing competition by leveling the advantage out-of-state businesses had over in-state businesses.

Major interests

Because the stakes in these cases are quite large, the parties marshal support from some of the top Supreme Court advocates. The list of repeat attorneys in this set of cases from 2015 through 2017 is a veritable who’s who of the Supreme Court bar.

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Many of the most notable appellate attorneys now in practice argued several of these cases, with Paul Clement in the lead, followed by fellow veteran Supreme Court attorneys Carter Phillips, David Frederick and Seth Waxman. Although several other big-firm attorneys top this list, the list also includes a handful of attorneys from smaller appellate boutiques, including Peter Stris and Daniel Geyser from the Los Angeles based firm Stris & Maher (Geyser has since started his own boutique, Geyser PC) and Thomas Goldstein, from the D.C.-area firm Goldstein & Russell (who is the publisher of SCOTUSblog).

Amicus support for positions in these cases is another indication that these outcomes matter to a variety of interests. Many of these cases had over 10 merits amicus briefs, while several had 20 or more. The cases in this set with the top number of cumulative merits amicus briefs supporting the petitioners’ or respondents’ positions are displayed below.

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The two cases with the most merits amicus briefs were Friedrichs v. California Teachers Association and Janus v. American Federation of State, County and Municipal Employees , which both involved mandatory union dues. Several patent-related cases, Oil States Energy Services v. Greene’s Energy Group and Impressions Products v. Lexmark International, also made the top of the list, along with two other cases from this past term — Wayfair and Epic Systems Corp. v. Lewis. These cases already make up a large portion of the court’s docket, so we may expect to see an even greater influx of similarly minded petitions as the court moves policy in an even more favorable direction for big businesses. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel on amicus briefs in support of the respondents in Janus and in support of the petitioner in Oil States.]

What to expect

If Kavanaugh is confirmed by the beginning of the 2018 term, we can expect the court to be even further inclined towards ruling in favor of business interests. The first indication of this is from the first figure in this post, which shows that Kennedy was on the lower end of support for business interests over the last three terms for the conservative justices on the court.

Furthermore, although the court sided with pro-business interests more frequently last term than it has in previous terms, many of these were decided by a narrow margin. The following figure shows the difference in majority and minority votes in this set of decisions for the past three terms (the row labeled “1” is for cases decided by a single vote).

Click graph to enlarge.

The justices decided eight business-related cases last term by one vote. That was compared to one such decision in both the 2016 and 2015 terms. Although not all of the decisions were based on close votes in the past several terms, we may expect more hotly contested cases on the horizon, especially if the court’s liberal and conservative justices continue to rule in divergent directions.

With this increased polarity, Kavanaugh will in all likelihood provide greater support for pro-business interests. What support is there for this proposition? The best signs are from his written opinions while on the U.S. Court of Appeals for the District of Columbia Circuit. His opinions in the following cases are not only examples of his positions, but cumulatively show a propensity to rule in big businesses’ favor.  These cases constitute the set of pure business cases as coded for a previous post.

In Wu v. Strombler, Kavanaugh wrote an opinion that ruled in favor of Carlyle Capital, which was accused of making material misstatements and omissions to investors about the sale of securities.

Kavanaugh wrote an opinion in favor of ExxonMobil in Metroil v. ExxonMobil, in which Exxon was accused of violating state and federal laws by selling a station leased and operated by Metroil to Anacostia, a gasoline distributor.

Kavanaugh wrote the majority opinion in Stilwell v. Office of Thrift Supervision, in which the D.C. Circuit upheld a regulation that allowed subsidiaries of mutual holding companies to limit minority shareholders to 10 percent of the subsidiary’s minority stock in order to prevent minority holders from taking advantage of voting rules regarding stock benefit plans.

In Pirelli Armstrong Trust v. Raines, Kavanaugh wrote for the majority holding in favor of Fannie Mae in a case dealing with a series of accounting failures reported in corporate earning restatements. Kavanaugh’s opinion upheld the district court’s ruling against allowing shareholder derivative suits filed against Fannie Mae’s directors.

In Doe v. ExxonMobil, Kavanaugh dissented in favor of Exxon in a case in which Exxon was sued under the Alien Tort Statute for aiding and abetting Indonesian officials’ abusive behavior towards Indonesian citizens.

Although Kavanaugh was consistently on the pro-big-business side of these decisions, not all these cases divided the panels ideologically. Several judges appointed by Democrats sided with Kavanaugh in some of the decisions listed above, including Judges Merrick Garland and Harry Edwards in Metroil. This is likely a similar orientation to what Kavanaugh will find on the Supreme Court if he is confirmed — the liberal and conservative justices often rule in the same direction in these cases, even though that pattern was inconsistent last term.

Although the Supreme Court still has a little less than half of its 2018 docket to fill, many cases on the horizon will juxtapose pro and anti-business interests. Attorneys in several of these cases are listed in the attorney figure above, further amplifying this trend of repeat attorneys in this set of cases. These cases include:

From the previous figure of repeat player attorneys, the following attorneys are already counsel of record in the list of cases above (the numbers in parentheses indicate the number of these cases in which these attorneys are already listed): David Frederick (3), Shay Dvoretzky (2), Kannon Shanmugam (2), Peter Stris, Carter Phillips and Andrew Pincus.

The convergence of the factors described above almost ensures that a large portion of the court’s docket will be filled with cases implicating businesses’ interests. If Kavanaugh is confirmed, we can expect the pro-business direction of the court’s rulings to continue and perhaps even to increase in momentum. With five solid conservative votes on the court, the conservative justices will have more control over the court’s docket, as they can predict their desired outcomes each time they congregate as a united front. If they do so they will have great leeway in case selection and in setting the court’s course, whether in favor of pro-business interests or otherwise.

This post was originally published at Empirical SCOTUS.

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Kavanaugh on the executive branch: PHH Corp. v. Consumer Financial Protection Bureau

Kavanaugh on the executive branch: <em>PHH Corp. v. Consumer Financial Protection Bureau</em>Judge Brett Kavanaugh wrote two opinions in PHH Corp. v. Consumer Financial Protection Bureau: a panel opinion declaring an aspect of the bureau to be unconstitutional and an opinion dissenting from the en banc U.S. Court of Appeals for the District of Columbia Circuit’s decision overruling his panel opinion. In both opinions, Kavanaugh expressed serious […]

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Kavanaugh on the executive branch: <em>PHH Corp. v. Consumer Financial Protection Bureau</em>

Judge Brett Kavanaugh wrote two opinions in PHH Corp. v. Consumer Financial Protection Bureau: a panel opinion declaring an aspect of the bureau to be unconstitutional and an opinion dissenting from the en banc U.S. Court of Appeals for the District of Columbia Circuit’s decision overruling his panel opinion. In both opinions, Kavanaugh expressed serious skepticism of the regulatory state while celebrating a view of the Constitution that vests in the president an extensive degree of unilateral authority over the executive branch’s enforcement of federal laws. Those views have been lauded by conservative commenters who celebrate Kavanaugh’s “[t]aming” of “the administrative state” — and by the White House, which has praised his record of “protect[ing] American businesses from illegal job-killing regulation.” Commenters on the left see in Kavanaugh’s PHH opinions a hostility to the CFPB’s mission more than to its structure, detecting an anti-consumer bias and general hostility to financial regulation.

In 2010, in response to the financial crisis of 2008, Congress enacted the Dodd-Frank Wall Street Reform Act and Consumer Protection Act. Among other things, the Dodd-Frank Act created a new administrative agency: the Consumer Financial Protection Bureau. Congress charged the CFPB with improving transparency and accountability in the market for consumer financial products, including enforcing a broad array of consumer-protection laws. Because the new agency was created to respond to a financial crisis and would operate in what Congress viewed as a fast-changing world of consumer finance, Congress designed it to become operational promptly and to act efficiently by providing for a single director to lead the CFPB, rather than a multi-member body. And, in order to give the agency some degree of independence and to promote stability and confidence in the country’s financial system, Congress provided that the director will serve a five-year term and can be removed by the president only for cause (i.e., for inefficiency, neglect of duty or malfeasance in office). Independent agencies are nothing new — the Federal Communications Commission, the Securities and Exchange Commission, the Federal Trade Commission, the National Labor Relations Board and the Federal Energy Regulatory Commission all operate independently in the sense that the heads of those agencies are removable only for cause. But each of those agencies is headed by a multi-member body, with the idea that the members of the leadership body will serve as a check on each other.

This case arose out of the CFPB’s 2014 civil enforcement action against PHH Corp., a mortgage lender. CFPB determined that PHH had violated the Real Estate Settlement Procedures Act and the director ultimately entered a $109 million disgorgement order against the company. PHH challenged the order in the D.C. Circuit and a panel of that court vacated the order in an opinion written by Kavanaugh. Over the dissent of Judge Karen Henderson, the divided panel held that providing for-cause protection to the CFPB director violates the separation of powers principles embodied in the Constitution. (The panel also unanimously overturned the director’s interpretation of RESPA.)

The opening line of Kavanaugh’s opinion nicely captures his take on the issue: “This is a case about executive power and individual liberty.” In Kavanaugh’s view, the power of the executive branch to enforce federal laws poses “a grave threat to individual liberty” — a threat that is held in check by the Framers’ decision to “lodge[] full responsibility for the executive power in the President of the United States, who is elected by and accountable to the people.” That structural “unitary Executive,” Kavanaugh explained (borrowing from Justice Antonin Scalia), was intended “to preserve individual freedom.” Although he acknowledged that the president executes the laws with the assistance of subordinate officers, he emphasized that the president “must be able to control subordinate officers in executive agencies” in order “[t]o carry out the executive power and be accountable for the exercise of that power.”

By way of background, the constitutional issues in this case are governed by a small universe of Supreme Court decisions. Two of them — Myers v. United States, decided in 1926, and Humphrey’s Executor v. United States, decided in 1935 — set up a general rule and an exception. The court in Myers struck down a law that prevented the president from removing certain postmasters without the advice and consent of the Senate. In so doing, the court established the principle that the president must have authority to supervise, direct and remove at will subordinate officers in the executive branch. Nine years later, in Humphrey’s Executor, the court established an exception to that rule for independent agencies when it upheld a law giving for-cause protection to FTC commissioners. In the ensuing decades, the court has upheld restrictions on the president’s ability to remove executive officers in a handful of other cases, including 1958’s Wiener v. United States, which upheld for-cause protection for members of the War Claims Commission, and 1988’s Morrison v. Olson, which upheld restrictions on the president’s ability to remove the independent counsel. More recently, in Free Enterprise Fund v. Public Company Accounting Oversight Board, the court in 2010 struck down a restriction on the president’s authority to remove members of the PCAOB (an agency within the SEC), who could be removed only for cause by an order of the SEC, whose members could themselves be removed only for cause.  Notably, Kavanaugh had dissented from the D.C. Circuit decision in Free Enterprise Fund, which upheld the same restrictions.

Applying those precedents, Kavanaugh concluded that the exception in Humphrey’s Executor for independent agencies is limited to agencies headed by multimember bodies. He emphasized that, until recently, no other independent agency has been headed by a single director. In his view, “when measured in terms of unilateral power, the Director of the CFPB is the single most powerful official in the entire U.S. Government, other than the President.” Emphasizing the lack of any “settled historical practice of independent agencies headed by single Directors who possess the substantial executive authority that the Director of the CFPB enjoys,” Kavanaugh explained that the CFPB’s “departure from the settled historical practice requiring multi-member bodies at the helm of independent agencies” “threatens individual liberty.” Writing for the panel, Kavanaugh “conclude[d] that the CFPB is unconstitutionally structured because it is an independent agency headed by a single Director.”

The CFPB (acting through its own attorneys, i.e., without support from the Department of Justice) filed a petition for rehearing en banc and the petition was granted. A divided court left intact the portion of the panel decision addressing RESPA, but overruled the panel’s holding that the CFPB director’s for-cause protection from removal is unconstitutional. The en banc court produced seven different opinions, including an opinion for the court written by Judge Cornelia Pillard and a dissenting opinion from Kavanaugh. Pillard’s opinion emphasized the tradition of independence among executive branch agencies and officers charged with financial regulation and concluded that the CFPB fit well within that tradition. In her view, Congress acted within its authority when it “decided that the CFPB needed a measure of independence and chose a constitutionally acceptable means to protect it.” She explained that the director’s for-cause protection is exactly the same as was approved in Humphrey’s Executor and concluded that “the CFPB Director’s autonomy is consistent with a longstanding tradition of independence for financial regulators, and squarely supported by established precedent.” Pillard rejected the types of liberty concerns advanced by Kavanaugh, noting that “[i]t remains unexplained why we would assess the challenged removal restriction with reference to the liberty of financial services providers, and not more broadly to the liberty of the individuals and families who are their customers.” Kavanaugh wrote a dissenting opinion that closely tracked his earlier panel opinion.

Although PHH’s journey is over (no party sought Supreme Court review), the constitutional issue it presents may well find its way to the Supreme Court one day soon. Several pending cases in other federal courts of appeals raise the same challenge, including an appeal in the U.S. Court of Appeals for the 2nd Circuit from a district court decision that expressly adopted portions of Kavanaugh’s en banc dissent in PHH and declared the CFPB’s structure to be unconstitutional. And at least one challenge to the Federal Housing Financial Agency — which, like the CFPB, was established in part to respond to the 2008 financial crisis and is headed by a director who is removable only for cause — is working its way through the federal courts. It is safe to say that we can predict how a Justice Kavanaugh would approach those cases.

More generally, we can discern from Kavanaugh’s opinions in PHH a deep skepticism of independent agencies, which he describes as “a headless fourth branch of the U.S. Government” that collectively “pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.” His opinions also reveal a hostility to the idea of an executive branch official who can exercise authority without answering to the president — even when the whole point of that official’s job is to act independently. In PHH, Kavanaugh described the now-defunct “independent counsel experiment” at issue in Morrison as “a mistake,” “an unconstitutional departure from historical practice and a serious threat to individual liberty.” That skepticism could come into play if Kavanaugh were presented with a case involving the special counsel, whom the president cannot fire directly and who is subject to removal by the acting attorney general only for cause.

Kavanaugh’s PHH opinions also shed light on his views about liberty. He plainly views liberty as freedom from regulation, even when that regulation is directed at corporations with the stated purpose of protecting individuals. Pillard explained in her en banc opinion that Congress designed the CFPB based on the view that “markets’ contribution to human liberty derives from freedom of contract, and that such freedom depends on market participants’ access to accurate information, and on clear and reliably enforced rules against fraud and coercion.” That is certainly not Kavanaugh’s view; he sees a threat to liberty in any executive branch official who can act unilaterally and who is not the president.

If Kavanaugh is confirmed to the Supreme Court, we are certain to hear more from him about executive branch authority and individual liberty. And when we do, the themes that run through his PHH opinions are likely to guide his decision-making.

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Judge Kavanaugh and freedom of expression

Judge Kavanaugh and freedom of expressionTimothy Zick is the Mills E. Godwin, Jr., Professor of Law at William & Mary Law School. As Jonathan Adler recently observed, Justice Anthony Kennedy’s “expansive conception of the First Amendment’s protection of freedom of speech is among his most important judicial legacies, marking his jurisprudence from his first days on the Court to his […]

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Judge Kavanaugh and freedom of expression

Timothy Zick is the Mills E. Godwin, Jr., Professor of Law at William & Mary Law School.

As Jonathan Adler recently observed, Justice Anthony Kennedy’s “expansive conception of the First Amendment’s protection of freedom of speech is among his most important judicial legacies, marking his jurisprudence from his first days on the Court to his last.” Although it is not clear whether Judge Brett Kavanaugh would compile a similar record on the Supreme Court, we can make a few tentative predictions based on his record in the U.S. Court of Appeals for the District of Columbia Circuit. (Of course, all of the usual caveats associated with predicting the behavior of lower court judges once elevated to the Supreme Court apply.) This post reviews cases in which Kavanaugh either joined or authored opinions concerning freedom of speech and, to a lesser extent, other First Amendment rights (specifically, press and petition). It excludes decisions and opinions in the area of campaign finance, which were discussed in a prior post.

Kavanaugh’s record in First Amendment cases demonstrates a precedent-based or “common law” methodology, one that also relies on the lessons of history regarding free speech, press and petition rights. In substance, his record suggests that Kavanaugh would not expand the speech rights of government employees and might interpret the government speech principle rather broadly. He has also concluded that noncitizens abroad do not enjoy First Amendment rights – an issue the Supreme Court has not directly decided. However, in many contexts, Kavanaugh would likely be a consistent supporter of First Amendment rights. He has emphasized the importance, to democratic self-governance and the search for truth, of robust free speech, press and petition rights. He has adopted an expansive interpretation of editorial and speaker autonomy rights, is generally skeptical of measures that compel speech and association, and views government power to regulate private speech as sharply circumscribed. Looking forward, Kavanaugh’s appointment could have a significant impact in regulatory areas such as telecommunications and data privacy. Notably in this regard, his opinions suggest strong support for the speech rights of corporations, including digital-content providers.

  1. Speech in public forums

Although his record in this area is modest, Kavanaugh has voted to invalidate restrictions on free speech rights in public forums. However, he has made clear that this support does not extend to actions that deface or destroy public property.

In Boardley v. U.S. Department of Interior, Kavanaugh joined an opinion invalidating National Park Service rules that required permits and limited speakers to certain free speech areas. A group seeking to distribute religious tracts near Mount Rushmore National Memorial challenged the rules. The D.C. Circuit declined to hold that all national parks governed by the NPS rules were traditional public forums, where free speech and other First Amendment rights are at their zenith. However, the court concluded that the free speech areas constituted designated public forums for First Amendment purposes. The court held that the regulations were content-neutral, but were not narrowly tailored to further the government’s interests. In particular, the court took issue with application of the rules to individuals and small gatherings, who were particularly burdened by the permit and free speech zone requirements. It concluded that the regulations effectively forbade spontaneous speech in public parks, infringed on individuals’ ability to engage in anonymous speech, and failed to leave open ample alternative forums for expression.

However, in a brief concurring opinion in Mahoney v. Doe, Kavanaugh agreed with the panel that the government could, under a content-neutral District of Columbia law prohibiting the defacement of public property, prohibit anti-abortion protesters from chalking the sidewalks outside the White House. He wrote separately because he did not “want the fog of First Amendment doctrine to make this case seem harder than it is.” “No one,” Kavanaugh wrote, “has a First Amendment right to deface government property.”

  1. Coverage exceptions – defamation and incitement

First Amendment doctrine recognizes certain narrow coverage exceptions, including for communications about public officials or figures that are made with knowledge of their falsity or reckless disregard for their truth (defamation) and speech that incites others to unlawful action (incitement). Kavanaugh has written two defamation opinions and one opinion addressing speech that incites unlawful action.

In Kahl v. Bureau of National Affairs, Inc., Kavanaugh wrote the court’s opinion dismissing a prisoner’s defamation case against the Bureau of National Affairs, which was based on BNA’s reporting on a legal filing in the prisoner’s case. Applying the standards announced in New York Times v. Sullivan, Kavanaugh concluded that the prisoner, who had been convicted of murdering two U.S. marshals, was a “limited purpose public figure.” Thus, he had to demonstrate that BNA had acted with “actual malice.” Kavanaugh concluded that merely alleging falsity was not enough to satisfy this burden. He recognized that “[c]ostly and time-consuming defamation litigation” can chill freedom of speech and press. And he wrote: “To preserve First Amendment freedoms and give reporters, commentators, bloggers, and tweeters (among others) the breathing room they need to pursue the truth, the Supreme Court has directed courts to expeditiously weed out unmeritorious defamation suits.” In dismissing the complaint, Kavanaugh emphasized the First Amendment’s broad protection for the “unfettered interchange” of thoughts and ideas on matters of public concern.

In Abbas v. Foreign Policy Group, LLC, Kavanaugh wrote an opinion holding that questions posed in an article about a foreign leader’s son could not be treated as assertions of fact for purposes of proving defamation. Acknowledging that D.C. law was not clear on whether mere questions can constitute defamatory statements, Kavanaugh resolved the question by looking to the general rule from other jurisdictions. Kavanaugh reasoned:

After all, just imagine the severe infringement on free speech that would ensue in the alternative universe envisioned by Abbas. Is the Mayor a thief? Is the quarterback a cheater? Did the Governor accept bribes? Did the CEO pay her taxes? Did the baseball star take steroids? Questions like that appear all the time in news reports and on blogs, in tweets and on cable shows. And all such questions could be actionable under Abbas’s novel defamation theory.

He concluded that a contrary ruling would “ensnare a substantial amount of speech that is essential to the marketplace of ideas and would dramatically chill the freedom of speech.”

Abbas also addressed the question whether the District of Columbia’s Anti-Strategic Lawsuits Against Public Participation Act applied in federal court. Anti-SLAPP statutes like D.C.’s generally make it easier to dismiss defamation suits at an earlier stage, with the goal of decreasing the chilling effects associated with such litigation. Kavanaugh’s opinion acknowledged the purpose and importance of anti-SLAPP laws to free speech and press rights. His conclusion that the anti-SLAPP law does not apply when a federal court is exercising diversity jurisdiction, which involves a rather tricky federal procedure question, is shared by courts in some other circuits.

Kavanaugh has also authored an opinion applying the First Amendment’s “incitement” standard. In Al Bahlul v. United States, an en banc decision rejecting various constitutional challenges to trial by military commission, Kavanaugh wrote a concurring opinion in which he also addressed Al Bahlul’s claim that he had been prosecuted for political speech. The speech in question consisted of the production and distribution of al Qaeda recruitment videos that encouraged viewers to join al Qaeda and kill Americans. Kavanaugh concluded that the free speech clause does not apply to noncitizens located abroad. Further, even if the free speech clause did apply in these circumstances, he concluded that Al Bahlul’s speech was not covered by the First Amendment because it expressly incited, and was likely to result in, imminent unlawful activity.

  1. Government’s role as employer and speaker

Although the record is thin, Kavanaugh may support existing limits on public employee speech rights. In two cases, he has also taken a relatively broad view of the government’s power when it acts as a speaker rather than as a regulator of speech.

In LeFande v. D.C., Kavanaugh joined an opinion holding that a police reserve officer’s emails to his superiors, in which he cc’d his co-workers, were not protected under the balancing test adopted by the Supreme Court in Pickering v. Board of Education. The district court had held that the emails were government speech and thus not entitled to any First Amendment protection. However, the panel concluded that even if the emails constituted speech by an employee on a matter of public concern, the employer’s interest in promoting office harmony outweighed any interest the employee had in sending them.

In Moore v. Hartman, Kavanaugh disagreed with a panel opinion finding, in a First Amendment retaliation suit, that D.C. law had “clearly established” that an arrest in retaliation for speech is insulated from suit when there is probable cause for the arrest. In a dissenting opinion, Kavanaugh concluded that the law concerning probable cause was not “clearly established” and that defendants were thus entitled to qualified immunity on the First Amendment claim. (The Supreme Court recently ruled that probable cause sometimes, although not always, bars a First Amendment retaliation claim.)

Kavanaugh was also involved in two cases addressing the government speech doctrine. In both cases, he rejected the First Amendment claim.

In DKT International, Inc. v. U.S. Agency for International Development, Kavanaugh joined an opinion holding, in the context of federal grants for HIV/AIDS relief efforts, that the federal government could refuse to fund nongovernmental organizations if they did not certify that they had a policy opposing prostitution and sex trafficking. Under existing U.S. policy, eradicating prostitution and sex trafficking was considered an integral part of the worldwide fight against HIV/AIDS. The D.C. Circuit, applying the principle that when the government communicates it may discriminate based on viewpoint, upheld the funding restriction. (In response to another challenge, the Supreme Court later invalidated the funding restriction, on the ground that it unconstitutionally compelled speech outside the scope of the government funding program.)

In Bryant v. Gates, the D.C. Circuit rejected a challenge to Department of Defense regulations that restricted advertisements in newspapers published under contract with the department and distributed on military bases. The majority resolved the case under public forum doctrine, holding that the newspapers’ advertisement space was a “non-public forum” and that the rules were reasonable and viewpoint-neutral. In a concurring opinion, Kavanaugh wrote that there was “a far easier way to analyze this kind of case under the Supreme Court’s precedents.” He concluded that the content in military-run newspapers and advertisement spaces was the government’s own speech. As he explained: “The military may, for example, permit advertisements that say ‘Support the Troops’ but decline advertisements that say ‘Oppose the Troops.’ If forum analysis applied, however, the military could not maintain that kind of sensible editorial policy.”

  1. Petition rights

The First Amendment’s petition clause, which protects the right “to petition the Government for a redress of grievances,” does not receive much judicial attention. Kavanaugh has written two opinions addressing petition rights, recognizing such rights in one case and declining to do so in the other.

Kavanaugh wrote the opinion in Venetian Casino Resort, L.L.C. v. National Labor Relations Board, which held that the Venetian did not violate the National Labor Relations Act when it called on police officers to arrest employees demonstrating on a walkway in front of its property and to block them from the walkway. The opinion applied the Noerr–Pennington doctrine, under which direct petitions to government are shielded from liability under the NLRA on the ground that they are protected by the First Amendment. Kavanaugh wrote that “the act of summoning the police to enforce state trespass law is a direct petition to government subject to protection under the Noerr-Pennington doctrine.” However, the doctrine does not apply if the petition is a “sham.” Kavanaugh remanded the case to the NLRB to determine whether the Venetian’s petition was genuine.

In We The People Foundation, Inc. v. United States, Kavanaugh wrote an opinion rejecting a petition clause claim. Various individuals who had petitioned Congress and the executive branch with respect to a variety of issues (war, privacy and taxes) alleged that the petition clause entitled them to a response from the federal government. Relying on Supreme Court precedents rejecting similar claims filed against state officials, the D.C. Circuit held that the petition clause does not entitle petitioners to any response from federal officials.

  1. Commercial speech and compelled speech

Kavanaugh has written one significant opinion in a case involving commercial speech. The opinion is noteworthy for two reasons. First, it addressed the scope of protection for commercial speech. Second, it involved a mandatory disclosure, thus implicating rights against compelled speech.

In American Meat Institute v. U.S. Department of Agriculture, a divided panel of the en banc D.C. Circuit upheld a federal regulation that required the meat industry to include “country of origin” information on meat packaging. In Zauderer v. Office of Disciplinarian Counsel of the Ohio Supreme Court, the Supreme Court held that “the States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading.” In American Meat Institute, a group of livestock producers, feedlot operators and meat packers challenged the “country of origin” regulation on First Amendment grounds, arguing that it failed under Zauderer because it amounted to compelled speech that did not advance a permissible regulatory goal. The majority concluded that the mandatory disclosure was justified because the information was valuable to consumers in terms of making informed purchases and relevant to health concerns relating to possible food-borne illnesses.

In a concurring opinion, Kavanaugh concluded that the First Amendment did not bar the “longstanding and commonplace country-of-origin labeling requirements.” He found that the government could not “advance a traditional anti-deception, health, or safety interest in this case.” Rather, it asserted a general interest in “providing consumers with information.” Rejecting that argument, Kavanaugh concurred in the judgment on the ground that country-of-origin labeling was justified “by the Government’s historically rooted interest in supporting American manufacturers, farmers, and ranchers as they compete with foreign manufacturers, farmers, and ranchers.” Thus, he upheld the regulation, but on a different and somewhat narrower ground than the majority.

Some have suggested that Kavanaugh’s concurrence indicates a lack of support for commercial speech rights. However, in addition to emphasizing that “the First Amendment protects commercial speech,” Kavanaugh interpreted Zauderer as denying government “a free pass to spread their preferred messages on the backs of others” owing solely to its interest in providing consumers with information. He concluded that “history and tradition provide no support for that kind of free-wheeling government power to mandate compelled commercial disclosures.” Kavanaugh also explained that Zauderer is “simply an application of Central Hudson Gas & Electric v. Public Svc. Comm. [which provides the general standard for commercial speech regulations], not a different test altogether.” Kavanaugh described the Zauderer standard as “far more stringent than mere rational basis review.” Indeed, he wrote, “Zauderer tightly limits mandatory disclosures to a very narrow class that meets the various Zauderer requirements.”

Regarding mandatory disclosures and compelled speech more generally, Kavanaugh’s concurrence agreed “that the First Amendment imposes stringent limits on the Government’s authority to either restrict or compel speech by private citizens and organizations.” Moreover, in his telecommunications opinions, which are discussed immediately below, Kavanaugh made clear that he supports broad First Amendment rights against compelled speech and association. Thus, the single instance in which he upheld a mandatory commercial disclosure likely tells us little about how he would decide a case involving, for example, compulsory baking of wedding cakes for same-sex couples. Kavanaugh’s general approach to compulsory disclosure laws suggests that he would view such measures skeptically.

  1. Telecommunications and technology

Kavanaugh has written several opinions concerning the First Amendment rights of internet intermediaries, cable providers and other telecommunications networks. His opinions articulate a broad view of First Amendment editorial and speaker-autonomy rights, including for digital-content providers.

The opinion that has received the most attention is Kavanaugh’s dissent from the denial of en banc review in United States Telecom Association v. Federal Communications Commission. A panel of the D.C. Circuit upheld the FCC’s Open Internet Order, which imposed what is commonly referred to as “net neutrality.” In general terms, net neutrality required that internet service providers treat all internet traffic equally or neutrally. Thus, ISPs like AT&TComcast and Verizon were barred from charging more for various activities, such as video streaming, which takes up more bandwidth. Proponents of net neutrality contended that in its absence, the free flow of information on the internet would be adversely affected by a tiered communication system controlled by powerful ISPs. (The FCC reversed its order in December 2017; in January 2018, 21 states filed suit against the FCC challenging the reversal.)

In his dissent from denial of en banc review of the panel opinion, Kavanaugh wrote that the FCC order was not authorized by Congress and undermined the separation of powers. He also argued that even if Congress had authorized net neutrality, “the First Amendment bars the Government from restricting the editorial discretion of Internet service providers, absent a showing that an Internet service provider possesses market power in a relevant geographic market.” Addressing the application of the First Amendment to ISPs, Kavanaugh wrote: “The First Amendment protects an independent media and an independent communications marketplace against takeover efforts by the Legislative and Executive Branches. The First Amendment operates as a vital guarantee of democratic self-government.” He also invoked the Founding era, during which “the First Amendment protected (among other things) the editorial discretion of the many publishers, newspapers, and pamphleteers who produced and supplied written communications to the citizens of the United States.” Kavanaugh concluded that “those foundational First Amendment principles apply to editors and speakers in the modern communications marketplace in much the same way that the principles apply to the newspapers, magazines, pamphleteers, publishers, bookstores, and newsstands traditionally protected by the First Amendment.” If the rule were otherwise, he wrote, the government could “regulate the editorial decisions of Facebook and Google, of MSNBC and Fox, of NYTimes.com and WSJ.com, of YouTube and Twitter.”

In other cases, Kavanaugh has expressed similar views about the First Amendment editorial rights of content providers and telecommunications networks. Thus, in Comcast Cable Communications, LLC v. FCC, he wrote a concurring opinion stating that absent a sufficient showing of market power, the FCC’s interpretation of a regulation that required Comcast and other programming distributors to carry certain content violated the First Amendment. Similarly, in Cablevision Systems Corp. v. FCC, Kavanaugh filed a dissent from the court’s decision upholding an FCC regulation prohibiting exclusive contracts between cable companies and affiliated networks. In both cases, he emphasized that the FCC could not interfere with the content provider’s editorial discretion by compelling it to carry, or prohibiting it from carrying, certain content. The opinions are based on what Kavanaugh referred to as a “straightforward and expansive” First Amendment that applies with full force to “modern means of communication” just as it did to early publishers and pamphleteers.

Some commentators have suggested that these opinions indicate that Kavanaugh may interpret data privacy and other laws in ways that could “alter the digital landscape.” The record, including his opinions in the campaign finance and telecommunications areas, strongly suggests that Kavanaugh will broadly protect the rights of corporate speakers and apply the free speech clause in a variety of regulatory areas, perhaps including data privacy.

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Good Behaviour #8: “Batting .998”

Good Behaviour #8: “Batting .998”We round up the latest news on Judge Brett Kavanaugh, including speculation on documents from his time in President George W. Bush’s administration and a debate over whether Democrats should support his confirmation when they disapprove on the merits.

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Good Behaviour #8: “Batting .998”

We round up the latest news on Judge Brett Kavanaugh, including speculation on documents from his time in President George W. Bush’s administration and a debate over whether Democrats should support his confirmation when they disapprove on the merits.

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Judge Kavanaugh on law and religion issues

Judge Kavanaugh on law and religion issuesFrank S. Ravitch is Professor of Law and Walter H. Stowers Chair in Law & Religion Michigan State University College of Law. The number of cases involving religion in which Judge Brett Kavanaugh wrote an opinion for the U.S. Court of Appeals for the District of Columbia Circuit is limited. His opinions are, however, quite […]

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Judge Kavanaugh on law and religion issues

Frank S. Ravitch is Professor of Law and Walter H. Stowers Chair in Law & Religion Michigan State University College of Law.

The number of cases involving religion in which Judge Brett Kavanaugh wrote an opinion for the U.S. Court of Appeals for the District of Columbia Circuit is limited. His opinions are, however, quite enlightening as to how he might fit into the Supreme Court’s complex religion jurisprudence if he were confirmed. I will focus on cases in which Kavanaugh wrote an opinion, whether the majority opinion, a concurrence or dissent. I will also address two amicus briefs Kavanaugh wrote while he was in private practice at Kirkland & Ellis.

This overview shows that Kavanaugh is a thoughtful jurist when it comes to law and religion matters, although a significant number of people might disagree with some of his analysis. It seems that — at least as to law and religion issues — Kavanaugh might fill a role similar to that of Justice Anthony Kennedy; although for the reasons explained below, there are hints he could go in a different direction on some issues.

I will focus on three cases in which Kavanaugh wrote detailed opinions and then turn to his amicus briefs. The cases are Newdow v. Roberts, a 2010 case in which Kavanaugh filed a detailed opinion concurring in the judgment that may provide insight into his views on the establishment clause; Priests for Life v. United States Department of Health and Human Services, in 2015, in which Kavanaugh wrote an extensive dissent from the denial of rehearing en banc that provided detailed analysis of the underlying Religious Freedom Restoration Act claim and also complicity-based religious exemption claims under RFRA; and In re Navy Chaplaincy v. United States Navy, in which Kavanaugh wrote the majority opinion in a 2008 establishment clause case that addressed Article III and taxpayer standing. There are a few other published and unpublished opinions touching on religion issues for which Kavanaugh was on the panel, but did not write a separate opinion. See Navy Chaplaincy v. United States Navy (different Navy Chaplaincy case involving standing based on alleged discrimination in assignments of chaplains); Kaemmerling v. Lappin (involving issues about DNA collection under the Prison Litigation Reform Act and RFRA); St. John’s United Church of Christ v. FAA (raising among other claims, a RFRA challenge to the FAA authorizing the city of Chicago to impose charges on passengers to pay for runway construction and the purchase of land).

A. Newdow v. Roberts

In Newdow v. Roberts, a panel of the D.C. Circuit upheld the dismissal of a complaint filed by several plaintiffs opposing prayers and the addition of the term “so help me God” to the presidential oath at the presidential inauguration ceremony in 2008. The panel held the claim was moot as to the 2008 inauguration and that the plaintiffs lacked standing to challenge future inaugurations. Kavanaugh filed an opinion concurring in the judgment, but he disagreed with the majority’s conclusion that the plaintiffs lacked standing, and he explained how he would have addressed the issues on the merits.

Kavanaugh would have held that the addition of the term “so help me God” to the presidential oath and the invocation and benediction-type prayers at the inauguration do not violate the establishment clause because they fit within the sort of long-term practice exemplified by the legislative prayer the Supreme Court upheld in 1983 in Marsh v. Chambers.

Kavanaugh began by explaining that the harm felt by atheists and others when prayers and religious content are included in public events is very real and should not be underestimated. He found this assessment of the effects on nonbelievers relevant to his analysis of both standing and the constitutionality of the religious content at the inauguration:

First is an obvious point, but one worth emphasizing. In our constitutional tradition, all citizens are equally American, no matter what God they worship or if they worship no god at all…

Second, in deciding this case, we cannot gloss over or wish away the religious significance of the challenged Inaugural prayers. The fact that religious words are common to many faiths—or are used repeatedly—does not diminish their religious meaning…

Third, and relatedly, we cannot resolve this case by discounting the sense of anguish and outrage plaintiffs and some other Americans feel at listening to a government-sponsored religious prayer. Any effort to tell plaintiffs that “it’s not a big deal” or “it’s de minimis” would be entirely out of bounds, in my judgment. ..

Fourth, at the same time, we likewise cannot dismiss the desire of others in America to publicly ask for God’s blessing on certain government activities and to publicly seek God’s guidance for certain government officials.

Despite acknowledging the real injury that these sorts of public religious displays may inflict on nonbelievers, Kavanaugh relied on the longstanding and unbroken practice of adding the words “so help me God” to the presidential oath, and of prayer at presidential inaugurations, to find these practices constitutional, comparing them to the unbroken practice of legislative prayer upheld in Marsh v. Chambers.

Kavanaugh acknowledged that the Supreme Court uses a variety of tests to determine whether a government practice violates the establishment clause, and he explained that these tests tend to be contextual. He did not specifically name the tests, but he was most likely referring to the endorsement test, the indirect coercion test and the Lemon test, derived from the Supreme Court’s 1971 decision in Lemon v. Kurzman. He opted, however, for the “tradition test” from Marsh, claiming that this test applies to government-sponsored religious speech outside of the school context. Although there are a variety of contexts in which one would expect courts to apply one of the other tests to government-sponsored religious speech outside the public schools , such as when sectarian prayer is given at the dedication of a monument with religious meaning, Kavanaugh said little about the other tests.

Marsh’s “tradition” approach essentially gives a free pass to all longstanding religious speech that is nonsectarian and nonproselytizing (A subsequent Supreme Court case, Town of Greece v. Galloway, has removed the requirement that prayer be nonsectarian in many circumstances.). As Kavanaugh noted, the religious speech at the presidential inauguration has a lot in common with the prayer in Marsh because it is a tradition that has continued from the early years of the nation and is nonproselytizing. He struggled to address the fact that the prayers at presidential inaugurations are often sectarian, but he explained that under Marsh, sectarian references are not problematic by themselves so long as they are not used to proselytize, promote any faith or disparage any faith. He would have held that the religious content of the inauguration ceremony did not violate this principle.

Significantly, Kavanaugh suggested that Marsh applies in most nonschool situations in which there has been a longstanding tradition of prayer. However, there is significant debate about whether Marsh applies in contexts outside of those in which government religious speech goes back to the time of the framing. Kavanaugh was careful to mention that as a lower court judge he was bound by Supreme Court precedent. This, of course, leaves open the question of what he might decide if he were on the Supreme Court himself.

B. Priests for Life v. United States Department of Health and Human Services

Kavanaugh dissented from the denial of rehearing en banc in this case, which involved religious organizations’ objections to an accommodation under the Affordable Care Act’s contraceptive mandate. The accommodation required religious organizations who objected to providing contraceptive coverage to file a form with their insurer or a letter with the government. Several religious organizations, including Priests for Life, objected to the filing, alleging that it made them complicit in the ultimate contraceptive care that was provided by the insurance company or the government.

The panel below found no violation of RFRA, and the full D.C. Circuit denied rehearing en banc. Kavanaugh would have granted en banc review and would have ruled for the religious organizations. Again, Kavanaugh explained that the D.C. Circuit is bound to follow Supreme Court precedent, including 2014’s Burwell v. Hobby Lobby, which Kavanaugh believed the panel below had misapplied. In Hobby Lobby, the Court applied RFRA to a challenge by for-profit entities to the ACA’s contraceptive mandate. The Court explained that RFRA requires consideration of whether the challenged government action places a substantial burden on sincerely held religious beliefs, and if so whether the government has a compelling interest for its action and whether the means used by the government to achieve its compelling interest are the least restrictive.

Applying Hobby Lobby, and especially Kennedy’s concurring opinion, Kavanaugh had no problem finding that the religious organizations suffered a substantial burden because they were forced to “take an action contrary to their sincere religious beliefs (submitting the form) or else pay significant monetary penalties.” Kavanaugh did a nice job explaining why complicity claims are both complex and difficult when analyzed under RFRA. Yet, he found that as long as a person or entity makes a complicity claim in good faith, courts cannot question that claim, even if the claim is viewed by a court as “misguided.” For this position he relied on the holding in Hobby Lobby that courts may question the sincerity of a religious belief, but not its “correctness or reasonableness.” In this case he found the complicity concerns to be more than adequate to meet the substantial burden requirement.

Kavanaugh went on to find that the government interest in providing contraception coverage is compelling. He explained that compelling government interests are not static and have been developed over time “in common-law-like fashion.” In concluding that contraception coverage meets the compelling interest requirement, Kavanaugh relied heavily on Kennedy’s concurring opinion from Hobby Lobby. He noted that Kennedy, along with the four Hobby Lobby dissenters, would have found that the government does have a compelling interest in providing access to contraception. Kavanaugh explained that the government has an obvious interest in making contraceptives more “cheaply and widely available” to prevent unintended pregnancies, which pose a significant financial and social cost. He also pointed to the government’s interest in preventing the cost to women’s health and self-determination posed by unintended pregnancies, and the benefits of contraception in preventing abortions.

Thus, the key question under RFRA was whether the government’s accommodation of allowing the religious nonprofits to file the form or letter was narrowly tailored to achieve its compelling interest. Kavanaugh would have held that the government had failed to meet its burden because another, less restrictive option existed, namely, allowing religious nonprofit organizations to notify the government that they object to providing contraceptive coverage. This would put the government on notice that it must take action to find and contact the relevant insurer and make sure coverage is provided. Kavanaugh would not have allowed the organizations to provide no notice, because then there would be no way for the government to meet its compelling interest of having contraceptive coverage provided. Rather, he found that the simple notice option — while not perfect from the organizations’ perspective — did not require an organization to do any more than acknowledge its situation.

Kavanaugh noted that this accommodation was exactly what was suggested in the Supreme Court’s 2014 orders in Wheaton College v. Burwell and Little Sisters of the Poor Home for the Aged v. Sebelius, two cases involving almost identical issues to those in Priests for Life. However, these decisions were not final rulings on the merits of those cases, so it is unclear what the court might ultimately say on narrow tailoring if faced with a final merits ruling. Kavanaugh, however, viewed the proposed accommodations in those cases as “extremely strong signals from the Supreme Court about how to resolve the least restrictive means issue in this case.” Ultimately, due to a change in policy by the Department of Health and Human Services that instituted the notice solution suggested by the Supreme Court in its 2014 orders, these cases have been resolved.

C. In re Navy Chaplaincy v. United States Navy

In this case Kavanaugh wrote the majority opinion. The case involved both Article III and taxpayer standing issues in a case brought by a group of Protestant Navy chaplains about an alleged establishment clause violation based on discrimination in favor of Catholic chaplains in the Navy’s retirement system. Article III standing arises from the constitutional requirement that courts only address cases or controversies in which the claimants have an injury in fact that is traceable to state action and can be redressed by a court. Taxpayer standing has only been applied in establishment clause cases since the 1960’s, but it has been eroded in a series of subsequent decisions.

The majority, over a strong dissent by Judge Judith Rogers, found that there was no Article III standing because the chaplains bringing the claim did not allege that they themselves had actually experienced any discrimination in employment or benefits. This is pretty standard Article III standing analysis, but in rejecting taxpayer standing Kavanaugh applied Supreme Court precedent that has essentially destroyed the original establishment clause taxpayer standing principle from 1968’s Flast v. Cohen, without ever overturning it. The Flast court found an exception in establishment clause cases to the general rule that merely being a taxpayer does not confer a right to challenge expenditures of public funds that allegedly violate the Constitution, because of what it considered the obvious interests of taxpayers in not having their tax dollars fund activities that violate the establishment clause. In a series of cases decided by the Rehnquist and Roberts Courts, including Arizona Christian School Tuition Organization v. Winn, a 2010 Kennedy decision, the sorts of government actions that are subject to taxpayer standing have been narrowed to a point that Flast has been distinguished almost out of existence.

In this case, taxpayer standing was denied because there was no legislation that expressly authorized funds to be used by the Navy to discriminate in providing benefits to the advantage of Catholic chaplains. This is consistent with the recent Supreme Court precedent on taxpayer standing. There is no indication from this opinion that Kavanaugh disagrees with the precedent eroding Flast.

D. Amicus briefs

While in private practice, Kavanaugh wrote two amicus briefs in major Supreme Court law and religion cases. I hesitate to read too much into these briefs, because they were written while in practice and on behalf of amicus interests. Still, the second brief mentioned below is a bit of a head scratcher.

The first is an amicus brief from 2001 in Good News Club v. Milford Central School. The case involved a challenge to the denial of access after school to school facilities on the same terms as other non-curriculum-related student groups. The brief argued that denying access to Good News Club, a Christian Bible-instruction program, in a limited public forum would be the very sort of discrimination based on speech that the court had repeatedly found unconstitutional. As a practical matter, the position taken in this brief was very much in line with the way the court ultimately decided the case and with equal-access jurisprudence generally.

It is the second amicus brief, in 2000’s Santa Fe Independent School District v. Doe, that raises some questions. The brief argued that the court should reject a facial challenge to a school policy allowing a student speaker at football games voted for by a majority of students because it is private speech in a limited public forum. This argument — which was also made by the school district — strains credulity. If indeed a student speech given at a school-controlled forum is somehow “private speech,” the school has engaged in content or viewpoint discrimination by only allowing the speaker chosen by a majority of students to speak. If it is not private speech, then given the long history of establishment clause violations by the school district, including prayer and other activities that violated the Supreme Court’s most basic decisions on the establishment clause, and the role the challenged policy played in that history, there were — as the court ultimately held — serious establishment clause problems.

Conclusion

On law and religion issues Kavanaugh seems a thoughtful jurist, who trends toward a jurisprudence similar to that of Kennedy. This, however, may be a function of the fact that Kennedy wrote some of the key opinions Kavanaugh has relied upon, most notably Kennedy’s concurrence in Hobby Lobby. Kavanaugh does show empathy for those who oppose government religious practices even if he would hold against them in many cases. Yet, in establishment clause cases, if he is not in the mold of Kennedy, he is more likely to lean toward the mold of Chief Justice William Rehnquist, who rarely agreed that government action violated the establishment clause, than, say, that of Justice David Souter, who had a more balanced approach, but was more likely to find an establishment clause violation. As for free exercise, and more specifically RFRA, Kavanaugh seems very similar to Kennedy, and seems willing to find that the government has compelling interests regarding contraception and possibly other matters. But of course, how likely Kavanaugh would be to conclude that a government action challenged under RFRA is narrowly tailored enough to survive is another matter.

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Judge Kavanaugh and the Second Amendment

Judge Kavanaugh and the Second AmendmentSince Justice Anthony Kennedy announced his plans to retire, analysis of the potential effects of his retirement has mostly focused on areas of the law in which he provided the swing vote for a more liberal result – for example, abortion or gay rights. On those issues, Kennedy’s replacement with a more conservative justice could […]

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Judge Kavanaugh and the Second Amendment

Since Justice Anthony Kennedy announced his plans to retire, analysis of the potential effects of his retirement has mostly focused on areas of the law in which he provided the swing vote for a more liberal result – for example, abortion or gay rights. On those issues, Kennedy’s replacement with a more conservative justice could shift the law to the right. But Kennedy sided with his more conservative colleagues in finding a Second Amendment right to have a handgun in the home, and there is no reason to believe that Judge Brett Kavanaugh, if confirmed, is likely to disagree. A more significant question, though, is whether a Supreme Court that included Kavanaugh might take a more expansive view of the Second Amendment and strike down some existing gun laws. Kavanaugh’s track record suggests that he might be willing to do so for at least some gun laws, although he does not regard the Second Amendment as creating an absolute right to have or carry a gun. It’s not clear, though, what effect Kavanaugh’s views would have on the court: The answer may hinge on the votes of his colleagues, and in particular Chief Justice John Roberts and Justice Samuel Alito.

The Second Amendment to the Constitution provides that “the right of the people to keep and bear Arms, shall not be infringed.” In 2008, in District of Columbia v. Heller, a divided Supreme Court struck down a D.C. law that generally banned the possession of handguns in the home, ruling that the law violated the Second Amendment. Two years later, in McDonald v. City of Chicago, the court (again, divided) invalidated a Chicago law similar to Washington’s, making clear that the Second Amendment also applies to the states. Since then, the justices have been asked several times to overturn lower-court decisions upholding state gun laws that challengers say violate the Second Amendment, but they have repeatedly declined to step in.

One such occasion came a little over a year ago, when the justices refused to weigh in on a California law that, as a general rule, bars people from carrying guns in public. Justice Clarence Thomas dissented from the denial of review, in an opinion joined by Justice Neil Gorsuch. Thomas lamented the Supreme Court’s failure to take up the case, calling the lower court’s ruling “indefensible.” “The most natural reading,” Thomas wrote, of the definition of the right to “bear Arms” should include the right to carry a gun in public. “I find it extremely improbable,” Thomas continued, that “the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.” “Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry,” Thomas concluded, “the time has come for the Court to answer this important question definitively.”

Even more recently, Thomas dissented from the court’s announcement that it would not review a challenge to California’s 10-day waiting period for gun purchases. The U.S. Court of Appeals for the 9th Circuit rejected a challenge by two California men, who had argued that the waiting period was unconstitutional for, at the very least, state residents who already own a gun or have a license to carry a concealed weapon. When the Supreme Court rejected the men’s petition in February 2018, Thomas was sharply critical of both the 9th Circuit’s ruling and the Supreme Court’s disposition of the case. He argued that the lower courts had generally failed to give the Second Amendment “the respect due an enumerated constitutional right.” “If a lower court had treated another right so cavalierly,” Thomas continued, “I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court,” and the justices’ “continued refusal to hear Second Amendment cases only enables” the double standard that the lower courts apply to gun-rights cases.

In the wake of the Supreme Court’s decision in Heller, the District of Columbia went back to the drawing board and passed a law that required gun owners to register their firearms; the law also prohibited both semi-automatic rifles and the possession of magazines with more than 10 rounds of ammunition. A challenge to the law made its way to the U.S. Court of Appeals for the District of Columbia Circuit, where a three-judge panel upheld the ban and most of the registration requirements. Kavanaugh dissented from that ruling; he would have struck down both the ban on semi-automatic rifles and the registration requirements. (He indicated that he would have sent the ban on large-capacity magazines back to the lower court for more fact-finding.)

Kavanaugh reasoned that handguns, which are mostly semi-automatic, are protected by the Second Amendment, and he saw no real difference, from a constitutional perspective, between handguns and semi-automatic rifles. Semi-automatic rifles, he observed, “have not traditionally been banned” and “remain in common use today”; indeed, he noted, handguns are more often used in violent crimes than semi-automatic rifles. The registration requirements, he continued, are unconstitutional because gun owners have traditionally not been required to register all guns that they own legally – “as distinct,” Kavanaugh pointed out, “from licensing of gun owners or mandatory recordkeeping by gun sellers.”

Although Kavanaugh indicated that he would have struck down the ban on semi-automatic rifles and the registration requirements, his discussion of the proper test to use to review gun laws suggests that he might be willing to uphold some gun laws, such as those requiring a license to carry a concealed weapon, as long as they are consistent with the history and tradition of regulating guns. He contended that a test that assesses “gun bans and regulations based on text, history, and tradition” will often give governments “more flexibility and power” than a balancing test, because “history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right.”

Whatever Kavanaugh’s position is likely to be on different efforts to regulate guns, he would, if confirmed, be only one of nine justices on the court. We know from his recorded dissents from the denial of review that Thomas would vote to review and overturn some existing gun laws, and we know that Gorsuch – at least to some extent – agrees with him. But it takes four votes to grant review in a case, and we do not know whether Roberts and Alito also agree with Thomas but have opted not to say so publicly, or whether they instead are content to leave the court’s gun-rights jurisprudence as it is. We could know more about the future of gun rights relatively soon, as various challenges to gun laws make their way toward the Supreme Court. Indeed, just this week, the 9th Circuit struck down Hawaii’s ban on carrying weapons openly outside of the home; even if the case goes to the full 9th Circuit, the losing party is almost certain to ask the Supreme Court to weigh in.

This post was originally published at Howe on the Court.

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Kavanaugh on administrative law and separation of powers

Kavanaugh on administrative law and separation of powersChristopher J. Walker is a law professor at The Ohio State University Moritz College of Law. Administrative law sets the ground rules for how federal agencies regulate and how courts review and constrain such agency action. Administrative law’s importance in our everyday lives has become even more pronounced in recent decades with the rise of […]

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Kavanaugh on administrative law and separation of powers

Christopher J. Walker is a law professor at The Ohio State University Moritz College of Law.

Administrative law sets the ground rules for how federal agencies regulate and how courts review and constrain such agency action. Administrative law’s importance in our everyday lives has become even more pronounced in recent decades with the rise of regulation and the decline of legislation. To provide just one imperfect snapshot, in 2015 and 2016 federal agencies promulgated more than 7,000 final rules filling more than 60,000 pages in the Federal Register. During that same time, by contrast, the 114th Congress enacted just 329 public laws filling about 3,000 pages in the Statutes at Large.

By congressional design, the U.S. Court of Appeals for the District of Columbia Circuit is the nation’s pre-eminent administrative law court and arguably “the second most important court” overall, after the Supreme Court. And D.C. Circuit Judge Brett Kavanaugh — President Donald Trump’s nominee to the Supreme Court — is one of the most sophisticated, provocative and creative voices in the federal judiciary when it comes to administrative law.

During his dozen years of service on the D.C. Circuit, Kavanaugh has authored around 300 opinions, more than a third of which deal with administrative law. As detailed below, Kavanaugh has written numerous major administrative law opinions — including dissents and concurrences, which Aaron Nielson has collected here — and the Supreme Court has embraced his approach on a number of occasions.

In reviewing Kavanaugh’s robust record on administrative law, I find myself agreeing with Jonathan Adler’s conclusion that a Justice Kavanaugh would not bring to the Supreme Court a commitment, in Steve Bannon’s words, to the “deconstruction of the administrative state.” He cares deeply about administrative law and regulatory practice. But he would likely “put a tighter leash on the regulatory state” — a tightening that would generally apply to regulation and deregulation alike.

That is because Kavanaugh’s decisions on the D.C. Circuit, coupled with his other writings, reveal a judge who takes separation of powers seriously. For Kavanaugh, agency regulatory authority comes from and is constrained by Article I, in that “[a]ll legislative powers herein granted shall be vested in a Congress of the United States.” Similarly, the modern administrative state functions against the Article II backdrop that “[t]he executive power shall be vested in a President of the United States of America.” These constitutional separation-of-powers values deeply influence Kavanaugh’s approach to administrative law.

Although not a comprehensive survey of his administrative law jurisprudence, the following in-depth look at three areas captures some of Kavanaugh’s major contributions to administrative law and assesses his potential impact on the federal regulatory state if he is elevated to the Supreme Court.

  1. Chevron (and Auer) deference

In recent years, there has been a growing call (mainly from those right-of-center) to eliminate — or at least narrow — administrative law’s judicial-deference doctrines regarding federal agency interpretations of law.

These reform efforts have been front and center at the Supreme Court. For example, in 2015, in Perez v. Mortgage Bankers Association, Justices Antonin Scalia, Clarence Thomas and Samuel Alito all questioned the wisdom and constitutionality of judicial deference to agency interpretations of their own regulations (Auer deference). And this term in Pereira v. Sessions, Justice Anthony Kennedy joined the prior calls by Thomas and then-Judge Neil Gorsuch to reconsider “reflexive deference” to agency statutory interpretations (Chevron deference).

Just as it was at Gorsuch’s confirmation hearing, I expect Chevron deference (and perhaps Auer deference) to be discussed at Kavanaugh’s hearing. A recent Mother Jones headline aptly summarizes one potential line of attack: “How Brett Kavanaugh Could Cripple the Next Democratic President. Two words: Chevron deference.”

So how would a Justice Kavanaugh affect Chevron deference’s future at the Supreme Court? The potential impact is threefold.

First, as a textualist, Kavanaugh would likely find statutes unambiguous more often than some of his more-purposivist peers who tend to interpret statutes in accordance with the statute’s purpose (and more often than his predecessor, Kennedy), and thus be less likely to defer to agency statutory interpretations. The role of ambiguity is critical to Chevron deference. After all, Chevron v. Natural Resources Defense Council commands that a reviewing judge defer to an agency’s interpretation of a statute the agency administers if (1) the statutory provision at issue is ambiguous and (2) the agency’s interpretation is reasonable.

As Kent Barnett and I have empirically explored in the circuit courts, the ambiguity inquiry at Chevron’s first step is far more exacting than the reasonableness inquiry at the second step. In our 11-year dataset of every published circuit-court decision that cites Chevron deference, we found that agencies prevailed under the Chevron doctrine 93.8 percent of the time when the court found the statute ambiguous and reached step two, but only 39.0 percent of the time when the court found the statute unambiguous and thus stopped at step one.

Kavanaugh has written extensively about the role of ambiguity in statutory interpretation. Most famously, he set forth his concerns in a Harvard Law Review essay reviewing Judge Robert Katzmann’s book on statutory interpretation. There, he argued that “judges often cannot make that initial clarity versus ambiguity decision in a settled, principled, or evenhanded way.” (For those interested in this debate, I highly recommend reading Katzmann’s purposivist reply.)

Kavanaugh himself has recognized that his textualist orientation will likely result in his finding fewer statutes ambiguous under Chevron than some of his judicial peers. As he observed in his Story Lecture last year, whereas some judges might require 90 percent certainty to declare a statute unambiguous, “I probably apply something approaching a 65/35 or 60/40 rule. In other words, if it is 60/40 clear, it is not ambiguous, and I do not resort to [Chevron deference].”

Accordingly, one should expect him to approach Chevron’s first step in a textualist fashion similar to Scalia’s, in which he exhausts all of the tools of statutory interpretation at Chevron step one to resolve the ambiguity. Or as Gorsuch framed it this term in Wisconsin Central Ltd. v. United States, a “clear enough” — as opposed to, perhaps, a crystal clear — Chevron step one inquiry. Kavanaugh’s opinion in Loving v. Internal Revenue Service is a good example of this approach. There, he relied on “the text, history, structure, and context of the statute” to reject the IRS’ interpretation of the statutory text “regulate practice of representatives of persons before the Department of Treasury” to include the authority to regulate tax preparers.

Second, Kavanaugh has advanced in his academic writings a more-systemic narrowing of Chevron deference based on concerns about uniformity of federal law and partisanship in judicial decision-making. As he explained in his Story Lecture, he finds the threshold ambiguity inquiry under Chevron problematic because his “goal is to help make statutory interpretation … a more neutral, impartial process where like cases are treated alike by judges of all ideological stripes, regardless of the issue and regardless of the identity of the parties in the case.”

So Kavanaugh proposes preserving agency deference “in cases involving statutes using broad and open-ended terms,” but perhaps eliminating it “where an agency is instead interpreting a specific statutory term or phrase.” That is because, in the latter instance, “[j]udges are trained to do that, and it can be done in a neutral and impartial way in most cases.” As Kavanaugh concludes, “the problem with certain applications of Chevron, as I see it, is that the doctrine is so indeterminate — and thus can be antithetical to the neutral, impartial rule of law — because of that initial clarity-versus-ambiguity decision.”

It is difficult to assess Kavanaugh’s proposal in the abstract. Perhaps he is suggesting a total elimination of Chevron deference when dealing with specific statutory ambiguities as opposed to open-ended delegations (that do not implicate major economic or political questions, more on that below) — though that line is often difficult to discern, much less draw. Or maybe this is just another way to articulate Kavanaugh’s textualist, Scalia-esque approach to Chevron step one. Or perhaps he is echoing Kennedy’s concerns from his Pereira dissent about how Chevron deference “has come to be understood and applied,” with “[t]he type of reflexive deference exhibited in some of these cases.” This strikes me as a fruitful line of inquiry for Kavanaugh’s confirmation hearing.

One final note: If Kavanaugh is concerned about administrative law’s political dynamics, the right prescription may be the opposite: Preserve a bright-line Chevron doctrine. In the latest article from our Chevron dataset, Kent Barnett, Christina Boyd and I find that, at least in the circuit courts, Chevron deference has a powerful effect on constraining partisanship in judicial decision-making and encouraging uniformity in federal law — the values that seem to motivate Kavanaugh in his academic writing. In our dataset (2003-2013), Kavanaugh largely applied the same approach to Chevron deference regardless of whether the agency interpretation under review was conservative or liberal. But that was not true for all conservative and liberal judges in our dataset. And perhaps this partisanship he sees in other judges’ application of Chevron deference is what is driving Kavanaugh’s concerns here.

Third, Kavanaugh has embraced a strong version of another means of narrowing Chevron deference: the major questions doctrine.

King v. Burwell, the statutory challenge to the Affordable Care Act, is a recent and prominent example of the major questions doctrine. In a 6-3 decision written by Chief Justice John Roberts, the Supreme Court found the statutory language ambiguous. But the court refused to apply any deference to the agency’s interpretation of the statutory ambiguity. Instead, the chief justice invoked the major questions exception to Chevron deference because the statutory provision implicated “a question of deep economic and political significance that is central to this statutory scheme” and for which the agency (the IRS) had no expertise.

Kavanaugh looked to King v. Burwell when the Federal Communications Commission’s net-neutrality regulation reached the D.C. Circuit in United States Telecom Association v. FCC. In his dissent from the denial of rehearing en banc, he argued that “[i]f the Supreme Court’s major rules doctrine means what it says, then the net neutrality rule is unlawful because Congress has not clearly authorized the FCC to issue this major rule.”

As Jeff Pojanowski has observed, Kavanaugh’s version of the major questions doctrine, which Kavanaugh relabeled the major rules doctrine, “came with a twist”:

After canvassing the Supreme Court’s jurisprudence and scholarly commentary, [Judge Kavanaugh] identified what he dubbed the “major rule” exception to Chevron deference. He saw this Chevron carve-out as holding that if “an agency wants to exercise expansive regulatory authority over some major social or regulatory activity … an ambiguous grant of statutory authority is not enough.” … Rather than hiding regulatory elephants in mouse holes, Congress can extend the reach of the administrative state only through clear statements.

Dan Deacon has argued that Kavanaugh’s approach is a “weaponized” version of the doctrine that, absent a clear congressional statement to the contrary, strips away not only Chevron deference for major questions but also any agency authority to regulate concerning those major questions. “[T]he ‘major rules’ doctrine might extend to actions that ‘de-regulate’ as well as regulate,” Deacon observes, “[b]ut the overall logic and tenor of [Kavanaugh’s] argument is largely anti-regulatory.” Eric Citron has a similar take in his contribution to SCOTUSblog’s coverage of Kavanaugh.

In that sense, Kavanaugh’s major rules doctrine is a second-order means of addressing nondelegation doctrine concerns. As noted at the outset, Kavanaugh’s view of separation of powers — and, in particular here, Article I’s nondelegation command that Congress cannot delegate legislative powers to federal agencies (or anyone else) — motivates his administrative law jurisprudence. Cass Sunstein, among others, has noted that the Supreme Court has seldom used the nondelegation doctrine to strike down a statute, largely because of line-drawing problems. Kavanaugh’s major rules doctrine attempts to address nondelegation concerns through a substantive canon of statutory interpretation instead of a constitutional doctrine, by establishing an interpretive presumption that Congress does not intend to delegate rulemaking authority over questions of major economic or political significance absent a clear congressional statement to the contrary.

Because Kavanaugh expounded this major rules doctrine in a dissent, its precise contours are understandably not fully developed. But I concur in Pojanowski’s assessment that “Judge Kavanaugh’s careful explication and reformulation of the ‘major questions’ exception is an important development in its own right, and a rich source for further reflection on the role of the courts in the administrative state.” It is certainly another fascinating line of inquiry for his confirmation hearing, especially when considered in conjunction with his proposal discussed above to limit Chevron deference to open-ended congressional delegations.

In sum, Kavanaugh’s approach to Chevron deference in practice would likely be quite similar to Scalia’s textualist approach at step one. He has also expressed concerns similar to his potential predecessor (Kennedy) about how the doctrine has become “reflexive deference” in practice, perhaps signaling a desire to cabin Chevron’s domain. In light of how he has embraced the major questions doctrine, it would be unsurprising to see a Justice Kavanaugh join the chief justice’s calls for a narrower, more context-specific Chevron deference.

Although Kavanaugh has not addressed the propriety of Auer deference to an agency’s interpretation of its own regulations, his concerns about interpretive doctrines that turn on ambiguity, coupled with his views on separation of powers, seem to suggest he would be receptive to calls to eliminate — or at least further limit — Auer deference. We may find out the answer as soon as this coming term, as a pending cert petition asks the court to overrule Auer v. Robbins.

Kavanaugh’s dissent in the net-neutrality regulation case, moreover, provides some fascinating clues for how a Justice Kavanaugh might address nondelegation and separation-of-powers concerns more generally. Again, we may learn more about Kavanaugh’s views on nondelegation doctrine as early as this term, when the Supreme Court decides Gundy v. United States, which raises a nondelegation challenge.

  1. APA hard-look review

In SCOTUSblog’s coverage of Kavanaugh, Edith Roberts and Michael Livermore have already surveyed Kavanaugh’s approach to hard-look review of agency action under the Administrative Procedure Act.

Simply put, Kavanaugh has embraced the Supreme Court’s instruction in Motor Vehicles Manufacturers Association v. State Farm to invalidate an agency’s rule when:

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Perhaps the most prominent example is Kavanaugh’s dissent in White Stallion Energy Center v Environmental Protection Agency. There he argued that the statutory language “appropriate and necessary” required the EPA to consider costs — an argument the Supreme Court ultimately embraced in its 5-4 decision in Michigan v. EPA.

As Roberts details, Kavanaugh’s approach to hard-look review does not always result in agency losses. One of his more prominent APA decisions is American Trucking Associations v. EPA, in which he authored the 2-1 majority opinion upholding the EPA’s authorization of California’s rule limiting emissions from in-use non-road engines. Judge Stephen Williams dissented, arguing that the EPA failed to engage in APA-required reasoned decision-making — an argument Kavanaugh rejected because he found the EPA had reasonably interpreted and considered the statutory criteria.

In Kavanaugh’s opinions concerning the APA arbitrary-and-capricious standard, one finds a judge who takes hard-look review seriously. He scrutinizes the agency’s rulemaking process to ensure that the agency has considered the relevant statutory factors, responded to counterarguments and evidence, and otherwise engaged in reasoned decision-making within the agency’s statutory authority. Agencies sometimes win and sometimes lose, and sometimes an agency loss is a “liberal” or “conservative” win.

Although I tend to view Kavanaugh’s approach to APA review as more principled and consistent than Livermore does, Livermore’s bottom line may well still be true: “[G]iven congressional gridlock, notice-and-comment rulemaking by environmental agencies has become the primary vehicle for environmental progress over the past several decades. [Replacing Kennedy with Kavanaugh] will make this path more difficult, halting and fraught with risk.”

And this prediction may be true not just for environmental cases but for administrative law more generally. To the extent federal agencies attempt to repurpose old statutes to address new problems in ways that stretch or distort those statutes, a Justice Kavanaugh is unlikely to vote to defer to the agency — and even less so, as discussed above, in matters of major economic or political significance. He has a long record of constraining agency action within what he perceives as the limits of the statutory text. Here, again, we see Kavanaugh’s separation-of-powers vision at play in that regulatory authority comes from Congress and is constrained by Article I nondelegation values.

There is one wrinkle that probably deserves a separate, extended write-up: Kavanaugh has shown some interest in APA originalism. In recent years, some scholars have called for a return to the text of the APA and an accompanying abandonment of administrative common law that is inconsistent with the original meaning of the APA. The Supreme Court has at times embraced this APA originalism, arguing that courts cannot require federal agencies to utilize procedures not expressly required by the APA itself. Vermont Yankee v. NRDC and Perez v. Mortgage Bankers come immediately to mind.

In light of his textualist approach to statutory interpretation and his separation-of-powers vision, it should come as little surprise that Kavanaugh has been relatively receptive to APA originalism. Consider American Radio Relay League, Inc. v. FCC. At issue was the D.C. Circuit’s Portland Cement doctrine, which requires federal agencies to disclose the technical data and studies on which they relied to draft the proposed rule. Although noting that this doctrine “may make sense as a policy matter in some cases,” Kavanaugh wrote separately to express his concerns that the doctrine is inconsistent with the text of the APA.

As a policy matter, I tend to agree with Dan Farber that the Portland Cement doctrine serves an important purpose in notice-and-comment rulemaking. (Though, it should be noted, some progressives have argued against the doctrine because it could put science on trial and discourage scientists from publicly sharing their datasets and models. Conversely, many regulated entities no doubt appreciate the doctrine as one more hurdle to trip up an agency on judicial review and thus further delay rulemaking.) There are compelling commonsense and nonpartisan policy reasons for the doctrine, and it is thus no surprise that the American Bar Association and the Administrative Conference of the United States have urged Congress to amend the APA to include such a disclosure requirement.

Kavanaugh’s concern, however, is not about policy but law—in particular, whether a court can impose such a requirement that he perceives is lacking in the APA itself. The Portland Cement doctrine is just the tip of the iceberg when it comes to APA originalism. Administrative common law arguably includes a number of central administrative law doctrines, including Chevron and Auer deference, the presumption of reviewability and remand without vacatur — just to name a few. And, for present purposes, hard-look review under the APA.

It’s doubtful there are five (or even four, or three, or two) votes on the Supreme Court to engage in a full-fledged APA originalism project. It isn’t even clear that Kavanaugh would be committed to such a project, especially for bedrock doctrines like hard-look review and deference doctrines for which statutory stare decisis is arguably quite weighty. But this is another area to watch in the years to come, especially if Kavanaugh joins the Supreme Court.

  1. Presidential control of independent agencies

For administrative law scholars and practitioners, it should come as no surprise which decision Kavanaugh lists in his Senate questionnaire as his most significant: his dissent in Free Enterprise Fund v. Public Company Accounting Oversight Board.

There, Kavanaugh argued that the PCAOB’s removal provisions were unconstitutional as contrary to the president’s Article II removal authority because of the double-insulation protection. In particular, PCAOB board members were only removable “for cause” by the Securities and Exchange Commission (not the president), and SEC commissioners were only removable “for cause” by the president. The 5-4 conservative majority on Supreme Court ultimately agreed with Kavanaugh’s dissent.

Kavanaugh may consider this dissent his most significant opinion on the D.C. Circuit, but it arguably isn’t even his most significant dissent when it comes to presidential control of independent agencies. As Jenn Mascott and Aaron Nielson detail elsewhere, “Judge Kavanaugh sounded similar themes in PHH v. CFPB, twice, in fact. There, he read Article II to prohibit another arguably novel agency structure—this one created by the Dodd-Frank Act.” In a panel opinion subsequently vacated by the D.C. Circuit en banc, Kavanaugh found unconstitutional the structure of the Consumer Financial Protection Bureau — an independent agency headed by a single director, as opposed to a multi-member commission, who was only removable for cause by the president. As he observed in the panel opinion, “That combination of power that is massive in scope, concentrated in a single person, and unaccountable to the President triggers the important constitutional question at issue in this case.” He thus severed the for-cause removal protection from the statutory scheme.

Last month a district judge in the Southern District of New York adopted Kavanaugh’s position, ruling that the CFPB cannot bring an enforcement action in district court because of its unconstitutional structure. Indeed, Judge Pleska went one step further and held that the for-cause removal provision is not severable. And earlier this month the U.S. Court of Appeals for the 5th Circuit found one of the few other single-director independent agencies (the Federal Housing Finance Agency) unconstitutional, on grounds similar to those articulated by Kavanaugh.

Kavanaugh’s views on Article II presidential control of federal agencies, and in particular of so-called independent agencies, could implicate a number of important administrative law issues that may reach the Supreme Court in the near future. Efforts to reconsider the political independence of administrative law judges — and perhaps the federal civil service more generally — are working their way through the administrative state. The White House may extend presidential review of agency rulemaking to cover independent agencies. And, of course, questions abound, at least as an academic matter, as to presidential control of a special counsel — a matter that exceeds the ambitions of this post but has been summarized by Kevin Russell in this SCOTUSblog series.

To be sure, Kavanaugh’s separation-of powers opinions do not directly address these issues — though some have strained to read “wolves” into Kavanaugh’s footnotes to cast doubt on the future of independent agencies writ large. If and when these issues reach the Supreme Court, however, one should expect a Justice Kavanaugh to have a unique and sophisticated take, one that takes into account the Article I and Article II separation-of-powers values that influence his administrative law jurisprudence.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel for the intervenors in United States Telecom Association. The author of this post is not affiliated with the firm.]

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Kavanaugh’s confirmation process: Democrats in the Senate

Kavanaugh’s confirmation process: Democrats in the SenateAt 9:00 p.m. on July 9, President Donald Trump nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to fill the vacancy on the Supreme Court left by the retirement of Justice Anthony Kennedy late last month. The nomination now goes to the Senate for confirmation, where majority […]

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Kavanaugh’s confirmation process: Democrats in the Senate

At 9:00 p.m. on July 9, President Donald Trump nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to fill the vacancy on the Supreme Court left by the retirement of Justice Anthony Kennedy late last month. The nomination now goes to the Senate for confirmation, where majority leader Mitch McConnell has said he would like a vote to confirm Kavanaugh by the fall. This post will examine the key players in the Democratic minority.

The 49-seat Democratic caucus will be unable to block Kavanaugh’s nomination on its own. Now that the filibuster has been eliminated for Supreme Court nominations, only a simple majority of senators is needed to confirm a Supreme Court nominee. Republicans currently hold 51 seats in the Senate, though Sen. John McCain, R-Ariz., is away from Washington while he receives treatment for brain cancer. If McCain is unable to vote, every Republican will have to vote for Kavanaugh to ensure confirmation without Democratic help.

A contentious confirmation fight will be nothing new for Kavanaugh; his nomination to the D.C. Circuit stalled for three years amid heavy Democratic opposition before he was confirmed in 2006. When his vote eventually occurred, only four Democrats supported his nomination. Tom Carper of Delaware is the only one of those four still serving today, but he has indicated that he will vote against Kavanaugh’s confirmation this time.

Senate Minority Leader Chuck Schumer

This will be Schumer’s second Supreme Court confirmation fight since he assumed the Democratic leadership post from Harry Reid after the Nevada senator’s retirement in 2016. The main drama last time centered on whether Schumer would lead a Democratic filibuster of Neil Gorsuch’s nomination and whether McConnell, in turn, would use the “nuclear option” of eliminating the filibuster for Supreme Court nominations. Schumer and McConnell both followed through, and so the filibuster will not be in play this time.

Immediately after Kennedy’s retirement, Schumer tried to pressure McConnell to honor the so-called “McConnell Rule.” Schumer argued that because McConnell delayed the nomination of Merrick Garland in an election year in 2016, he should do the same this year and wait until after the midterm elections to confirm Kennedy’s replacement. This line of argument, however, has subsided in recent days as it became clear that the Republicans have no intention of following this rule.

In the face of the Republican majority’s plan to hold hearings and a vote on Kavanaugh, Schumer had two strategic options. First, he could lead his caucus in fighting Kavanaugh’s nomination vigorously to rile up the ascendant activist left and increase turnout for the midterm elections. On the other hand, he could take a more conciliatory approach intended to protect the 10 Democratic senators up for re-election in states that Trump won in 2016.

Schumer chose to fight the nomination aggressively. On the night of the nomination, his office released a statement saying that he would “oppose Judge Kavanaugh’s nomination with everything I have, and I hope a bipartisan majority will do the same. The stakes are simply too high for anything less.” In addition, it has been reported that Schumer is cautioning fellow Democrats that they will face a uproar from their base if they do not fight the nomination. According to this report, Schumer has instructed his caucus to focus on criticizing Kavanaugh specifically rather than raising procedural objections. Schumer’s own statement, which asserts that Kavanaugh’s record indicates that he “would rule against reproductive rights and freedoms, and that he would welcome challenges to the constitutionality of the Affordable Care Act,” reflects this strategy.

Sen. Dianne Feinstein, ranking member of the Senate Judiciary Committee

Feinstein all but definitively came out against Kavanaugh in a series of statements after the nomination was announced, saying, “Brett Kavanaugh’s record indicates that he would be among the most conservative justices in Supreme Court history, his views are far outside the mainstream and there’s every reason to believe he would overturn Roe v. Wade.”

Feinstein has a reputation as a moderate but may have an incentive to adopt a more confrontational style during the confirmation fight. She is up for re-election in 2018, but because of California’s top-two primary system — in which the two highest vote-getters in a given primary, regardless of party, advance to the general election — she is being challenged from the left by fellow Democrat Kevin de Leon in the general election. In fact, de Leon was recently endorsed by the California Democratic Party in a rebuke to Feinstein.

Last year Feinstein, who will lead any Democratic effort to stall Kavanaugh’s nomination in committee, aggressively questioned Neil Gorsuch on his work in the George W. Bush administration. Given Kavanaugh’s work in the same administration, it would be fair to expect Feinstein to focus some of her questioning on that period of his career during the confirmation hearing.

The Gorsuch voters

Three Democrats voted for Neil Gorsuch last year: Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia. Each is up for re-election this November in a state that Trump won easily in 2016. They are three of five Democrats that conservative groups are hoping to pressure into voting for Kavanaugh. The statements put out by Donnelly, Heitkamp and Manchin, in contrast to those of most of their fellow Democrats, show some openness to supporting the nominee.

Donnelly said after Kavanaugh’s nomination:

As I have said, part of my job as Senator includes thoroughly considering judicial nominations, including to the Supreme Court. I will take the same approach as I have previously for a Supreme Court vacancy. Following the president’s announcement, I will carefully review and consider the record and qualifications of Judge Brett Kavanaugh.

Heitkamp’s statement sought to differentiate herself from fellow Democrats by saying, “I understand that many members of Congress and outside groups will announce how they stand on the nominee before doing their due diligence and instead just take a partisan stance — but that isn’t how I work.” She specifically mentioned her support for Gorsuch in the same statement.

For his part, Manchin seems to have settled on the specific issue that will determine whether he supports Kavanaugh: the Affordable Care Act. His statement on the night of the nomination singled out healthcare as a key issue:

I will evaluate Judge Kavanaugh’s record, legal qualifications, judicial philosophy and particularly, his views on healthcare. The Supreme Court will ultimately decide if nearly 800,000 West Virginians with pre-existing conditions will lose their healthcare. This decision will directly impact almost 40% of my state, so I’m very interested in his position on protecting West Virginians with pre-existing conditions.

In a recent town hall with constituents, Manchin said that he would ask Kavanaugh if he believes that the ACA is constitutional. As Tejinder Singh wrote for this blog last week, Kavanaugh’s record as a circuit judge “shows that [he] is willing to look for artful ways to avoid deciding questions he does not want to decide.” If Kavanaugh is able to convince Manchin that he will not vote to repeal the ACA, he may well have the West Virginian’s vote.

Other threatened Democrats

Donnelly, Heitkamp and Manchin are only three of the 10 Democratic senators running for re-election in states Trump won in 2016. The other two senators whom conservative groups are most focused on pressuring into voting for Kavanaugh are Claire McCaskill of Missouri and Jon Tester of Montana. Both of them have said little about Kavanaugh, only offering that they will meet with the nominee and consider his record.

The other five most vulnerable Democrats, Bob Casey of Pennsylvania, Sherrod Brown of Ohio, Bill Nelson of Florida, Tammy Baldwin of Wisconsin and Debbie Stabenow of Michigan, have all indicated or confirmed that they will vote against Kavanaugh’s nomination.

Tim Kaine represents Virginia, a state that Hillary Clinton won, with Kaine on the ballot for vice president, in 2016, but he is up for re-election and has said he will wait to decide on Kavanaugh until after he watches the confirmation hearing. He has singled out the ACA and abortion rights as issues he is most focused on.

The last Democrat who could potentially vote to confirm Kavanaugh is Doug Jones of Alabama, who upset Roy Moore in a special election last year. Jones is not up for re-election until 2020, but he represents a deep-red state. He has said only that he is “going to do a deep dive of his record and we’ll talk about that record… I’ll make my judgment at that point.”

Presidential hopefuls

The New York Times identified four members of the Democratic caucus who are preparing to run for the party’s nomination for president in 2020: Elizabeth Warren of Massachusetts, Kamala Harris of California, Cory Booker of New Jersey and Bernie Sanders of Vermont. None will vote for Kavanaugh, but it is worth monitoring how they each approach the nomination fight. Harris and Booker, as members of the Judiciary Committee, have an opportunity to produce a viral soundbite in hearings.

Warren and Sanders, along with another potential 2020 candidate, Kirsten Gillibrand of New York, will likely be battling for the support of the ascendant left-wing base. As some on the left have begun to call for a future Democratic president to pack the Supreme Court to ensure a liberal majority, one of these three senators may try to appeal to that base by saying he or she will pack the court if elected. Although it is unlikely that any senator will call for court-packing during the Kavanaugh proceedings, any lines of attack that suggest that Trump’s nominees are illegitimate could foreshadow an attempt to neutralize their power on the Supreme Court.

Conclusion

The Democrats are ultimately powerless to stop Kavanaugh’s nomination if the most likely scenario, in which no Republican breaks rank and the party has either 51 or 50 votes depending on McCain’s health, comes to fruition. In that case, it would be reasonable to expect somewhere between three and six conservative Democrats to also vote to confirm Kavanaugh as they seek to appeal to potential moderate voters in November. If, however unlikely it may be, it seems that a Republican senator is seriously considering voting against Kavanaugh, look for Schumer to aggressively shepherd his caucus into holding a firm line in the hopes of defeating Trump’s nominee, which would be a major blow to the GOP ahead of the midterms.

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