In nominating Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the Supreme Court, President Donald Trump has chosen an outstanding jurist known for his skepticism of the administrative state.
At age 53, a Justice Kavanaugh could consolidate a conservative majority on the High Court for years to come. In place of Kennedy’s somewhat impressionistic approach to law—he famously invoked “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” as the basis of the majority decision in Planned Parenthood v. Casey—Kavanaugh would bring a consistent and principled application of the original meaning of the text of the Constitution and other laws.
A D.C. native and Yale-educated lawyer, Kavanaugh once clerked for Justice Kennedy. He later worked for independent counsel Kenneth Starr during the investigation of President Bill Clinton that ultimately led to Clinton’s impeachment—a fact that will no doubt inflame opposition to his nomination. Kavanaugh also worked in the George W. Bush White House, initially in the counsel’s office and then as staff secretary.
He has been a judge on the U.S. Court of Appeals for the D.C. Circuit since 2006, with more than 300 written opinions to his credit. On that court, which hears appeals in cases involving federal regulatory actions, Kavanaugh has frequently pushed back against the administrative state. In one early example, Free Enterprise Fund v. PCAOB (2008), Kavanaugh argued in dissent that the structure of the Public Company Accounting Oversight Board, whose members could not be freely removed by the president, violated Article II of the Constitution. Reasoning from “the constitutional text and the original understanding,” Kavanaugh concluded that the PCAOB’s board was “unaccountable and divorced from Presidential control to a degree not previously countenanced in our constitutional structure.” Ultimately, a majority of the Supreme Court adopted Kavanaugh’s reasoning.
More recently, Kavanaugh argued in PHH Corporation v. CFPB (2016) that the structure of the Consumer Financial Protection Bureau (CFPB), with its single unaccountable head, violated the Constitution. In other decisions and in scholarly writing, Kavanaugh has also sought to limit the Chevron principle, which instructs judges to defer to administrative agencies’ own interpretations of their governing statutes. He has articulated the case against so-called “independent agencies” better than any other current judge. As he observed in the PHH Corporation case, “the independent agencies collectively constitute, in effect, a headless fourth branch of the U.S. Government. . . . Because of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.”
Kavanaugh has also sought to enforce constitutional limits on Congress’s power. In 2011, he dissented from the D.C. Circuit’s decision to uphold Obamacare. He chastised the majority’s reasoning, under which, for example, “a law replacing Social Security with a system of mandatory private retirement accounts would be constitutional.” On the Second Amendment, Kavanaugh dissented from a decision that approved D.C.’s onerous gun regulations, correctly arguing that the majority had created a “balancing test” for gun rights, in defiance of the Supreme Court’s landmark decision in District of Columbia v. Heller, which expressly looked to “text, history, and tradition” in interpreting the Second Amendment.
A strong supporter of religious liberty, Kavanaugh voted to strike down the Obama administration’s contraceptive mandate as applied to religious organizations in Priests for Life v. HHS. The Supreme Court later agreed that the administration’s rule, which required religious groups to facilitate access to contraceptives for their employees, imposed a “substantial burden” on free exercise of religion.
In political terms, Kavanaugh’s nomination presents a calculated risk. His government service and twelve years on the D.C. Circuit leave little doubt as to his qualifications for the Court—but also give him a lengthy track record for opponents to parse. Moreover, his D.C. pedigree and connections to the Bush administration may not play well among Trump supporters clamoring for an “outsider.” With only a bare Republican majority in the Senate, a few defections from moderates like Susan Collins and Lisa Murkowski could spell trouble. However, if Kavanaugh can make it through the Senate gauntlet, the Supreme Court will gain a powerful new member who could emerge as the leader of a new conservative majority.
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