Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court
Released: 2018-08-21T00:00:00

O n July 9, 2018, President Donald J. Trump announced the nomination of Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill the vacancy on the Supreme Court of the United States caused by Justice Anthony M. Kennedy's retirement on July 31, 2018. Nominated by President George W. Bush to the D.C. Circuit, a court once described by President Franklin Roosevelt as "the second most important court in the country," Judge Kavanaugh has served on the bench for more than twelve years. In his role as a Circuit Judge, the nominee has authored roughly three hundred opinions (including majority opinions, concurrences, and dissents) and adjudicated numerous high-profile cases concerning, among other things, the status of wartime detainees held by the United States at Guantanamo Bay, Cuba; the constitutionality of the current structure of the Consumer Financial Protection Bureau (CFPB); the validity of rules issued by the Environmental Protection Agency (EPA) under the Clean Air Act; and the legality of the Federal Communications Commission's (FCC's) net neutrality rule. Since joining the D.C. Circuit, Judge Kavanaugh has also taught courses on the separation of powers, national security law, and constitutional interpretation at Harvard Law School, Yale Law School, and the Georgetown University Law Center.

Prior to his appointment to the federal bench in 2006, Judge Kavanaugh served in the George W. Bush White House, first as an associate and then senior associate counsel, before becoming an assistant and staff secretary to the President. Before his service in the Bush Administration, the nominee worked in private practice at the law firm of Kirkland & Ellis, LLP for three years and served in the Office of the Independent Counsel and the Office of the Solicitor General. Judge Kavanaugh began his legal career with three federal clerkships—two for judges on the federal courts of appeals and one for the jurist he is nominated to succeed, Justice Kennedy. Judge Kavanaugh is a graduate of Yale College and Yale Law School.

This report provides an overview of Judge Kavanaugh's jurisprudence and discusses how the Supreme Court might be affected if he were to succeed Justice Kennedy. In attempting to ascertain how Judge Kavanaugh could influence the High Court, however, it is important to note that, for various reasons, it is difficult to predict accurately a nominee's likely contributions to the Court based on his or her prior experience. A section of this report titled Predicting Nominees' Future Decisions on the Court provides a broad context and framework for evaluating how determinative a judge's prior record may be in predicting future votes on the Supreme Court.

Because Judge Kavanaugh would succeed Justice Kennedy on the High Court, the report then focuses on those areas of law where Justice Kennedy can be seen to have influenced the Court's approach, or provided a fifth and deciding vote, with a view toward how the nominee might approach those same issues. Justice Kennedy's retirement is likely to have significant implications for the Court, Congress, and the nation as a whole. Justice Kennedy, often described as the Roberts Court's median vote, was frequently at the center of legal debates on the High Court, casting decisive votes on issues ranging from the powers of the federal government vis-à-vis the states, to separation-of-powers disputes, to key civil liberties issues. Accordingly, a critical question now before the Senate as it considers providing its advice and consent to the President's nomination to the High Court is how Judge Kavanaugh may view the many legal issues in which Justice Kennedy's vote was often determinative.

As a result, the report begins by discussing two cross-cutting issues—the nominee's general judicial philosophy and his approach to statutory interpretation. It then addresses thirteen separate areas of law, arranged in alphabetical order, from "administrative law" to "takings." Within each section, the report reviews whether and how Judge Kavanaugh has addressed particular issues in the opinions he authored. In some instances, the report also identifies other votes in which he participated (e.g., votes to join majority opinions authored by other D.C. Circuit judges, votes on whether the D.C. Circuit should grant en banc review to a decision of a three-judge panel, etc.). The report also analyzes, where relevant, Judge Kavanaugh's non-judicial work, including a number of speeches and academic articles, many of which address the role of the judiciary, separation of powers, and constitutional and statutory interpretation.

While this report discusses many of Judge Kavanaugh's non-judicial writings, it does not address two types of written work. First, the report does not discuss anything written by the nominee in a representative capacity for another party, such as a brief submitted on behalf of a client to a court, as such materials may provide limited insight into the advocate's personal views on the law. For purposes of this report, this limitation also extends to writings related to Judge Kavanaugh's former government service, such as his work for the George W. Bush Administration, the Office of the Independent Counsel, and the Office of the Solicitor General. Second, the report does not discuss the nominee's writings that predate his graduation from law school, as such writings may be of limited import to gauging his educated views on the law.

While the report discusses numerous cases and votes involving Judge Kavanaugh, it focuses particularly on cases in which the sitting panel was divided, as these cases arguably best showcase how he might approach a legal controversy whose resolution is a matter of dispute and is not necessarily clearly addressed by prior case law. In addition, the report highlights areas where the nominee has expressed views on the law that may contrast with those of some of his colleagues. To the extent that the nominee's votes in particular cases arguably reflect broader trends and tendencies in his decisionmaking that he might bring to the High Court, the report highlights such trends. Nonetheless, this report does not attempt to catalog every matter in which Judge Kavanaugh has participated during his service on the D.C. Circuit. A separate report, CRS Report R45269, Judicial Opinions of Judge Brett M. Kavanaugh , coordinated by [author name scrubbed], lists and briefly describes each opinion authored by the nominee during his tenure on the federal bench. Other CRS products discuss various issues related to the vacancy on the Court. For an overview of available products, see CRS Legal Sidebar LSB10160, Supreme Court Nomination: CRS Products , by [author name scrubbed].

Predicting Nominees' Future Decisions on the Court

At least as a historical matter, attempting to predict how Supreme Court nominees may approach their work on the High Court is a task fraught with uncertainty. For example, Justice Felix Frankfurter, who had a reputation as a "progressive" legal scholar prior to his appointment to the Court in 1939, disappointed some early supporters by subsequently becoming a voice for judicial restraint and caution when the Court reviewed laws that restricted civil liberties during World War II and the early Cold War era. Similarly, Justice Harry Blackmun, who served on the Eighth Circuit for a little over a decade prior to his appointment to the Court in 1970, was originally considered by President Richard Nixon to be a "strict constructionist" in the sense that he viewed the judge's role as interpreting the law, rather than making new law. In the years that followed, however, Justice Blackmun authored the majority opinion in Roe v. Wade , which recognized a constitutional right to terminate a pregnancy. He was generally considered one of the more liberal voices on the Court when he retired in 1994.

The difficulty in attempting to predict how a nominee will approach the job of being a Justice remains even when the nominee has had a lengthy federal judicial career prior to nomination. Federal judges on the courts of appeals are bound by Supreme Court and circuit precedent and, therefore, are not normally in a position to espouse freely their views on particular legal issues in the context of their judicial opinions. Moreover, unlike the Supreme Court, which enjoys "almost complete discretion" in selecting its cases, the federal courts of appeals are required to hear many cases as a matter of law. As a result, the courts of appeals consider "many routine cases in which the legal rules are uncontroverted." Because lower court judges are often bound by Supreme Court and circuit precedent, moreover, the vast majority of federal appellate opinions are unanimous. Perhaps indicative of the nature of federal appellate work, the vast majority of cases decided by three-judge panels of federal courts of appeals are decided without dissent.

While the D.C. Circuit, where Judge Kavanaugh serves, witnesses more dissents on average than its sister circuits, the overwhelming majority of opinions issued by the nominee's court are unanimous. Accordingly, while Judge Kavanaugh's work on the D.C. Circuit may provide some insight into his general approach to particular legal issues, the bulk of the opinions that the nominee has authored or joined may not be particularly insightful with regard to his views on specific areas of law, or how he would approach these issues if he were a Supreme Court Justice. When a federal appellate judge takes the step to write separately, however, such an opinion need not accommodate the views of other colleagues, and can therefore provide unique insight into a circuit judge's judicial approach.

Even in closely contested cases where concurring or dissenting opinions are filed, however, it still may be difficult to determine the preferences of the nominated judge if the nominee did not actually write an opinion in the case. The act of joining an opinion authored by another judge does not necessarily reflect full agreement with the underlying opinion. For example, in an effort to promote consensus on a court, some judges will decline to dissent unless the underlying issue is particularly contentious. As one commentator notes, "the fact that a judge joins in a majority opinion may not be taken as indicating complete agreement. Rather, silent acquiescence may be understood to mean something more like 'I accept the outcome in this case, and I accept that the reasoning in the majority opinion reflects what a majority of my colleagues has agreed on.'"

Using caution when interpreting a judge's vote isolated from a written opinion may be particularly important with votes on procedural matters. For example, a judge's vote to grant an extension of time for a party to submit a filing generally does not signal agreement with the substantive legal position proffered by that party. And while some observers have highlighted votes by Judge Kavanaugh in favor of having certain three-judge panel decisions reconsidered by the D.C. Circuit sitting en banc, these votes should be viewed with a degree of caution. A vote to rehear a case en banc could signal disagreement with the legal reasoning of the panel decision, and may suggest that a judge wants the entire court to have an opportunity to correct a perceived error by the panel. On the other hand, a vote to rehear a case en banc may be prompted by a judge's desire to resolve an intracircuit conflict between panel decisions, or may be indicative of the judge's view that the issue is of such importance as to merit consideration by the full court. Moreover, as one federal appellate judge noted in a dissent from a decision denying a petition for a rehearing en banc:

Most of us vote against most such petitions . . . even when we think the panel decision is mistaken. We do so because federal courts of appeals decide cases in three judge panels. En banc review is extraordinary, and is generally reserved for conflicting precedent within the circuit which makes application of the law by district courts unduly difficult, and egregious errors in important cases.

Consequently, a vote for or against rehearing a case en banc or on other procedural matters does not necessarily equate to an endorsement or repudiation of a particular legal position.

Finally, it should be noted that, despite having served on the federal appellate bench for more than a decade, Judge Kavanaugh has said little about some areas of law because of the nature of the D.C. Circuit's docket and, as a consequence, it may be difficult to predict how he might rule on certain issues if he were elevated to the Supreme Court. Due to the D.C. Circuit's location in the nation's capital, and the number of statutes providing it with special or even exclusive jurisdiction to review certain agency actions, legal commentators generally agree that the D.C. Circuit's docket, relative to the dockets of other circuits, contains a greater percentage of nationally significant legal matters. For instance, the D.C. Circuit hears a large number of cases on administrative and environmental law matters. In contrast, cases at the D.C. Circuit rarely, if ever, involve "hot-button" social issues such as abortion, affirmative action, or the death penalty. Moreover, the D.C. Circuit docket has a lower percentage of cases involving criminal matters, prisoner petitions, or civil suits between private parties. As a result, this report focuses primarily on areas of law where Judge Kavanaugh has written extensively, and notes only in passing those areas where little can arguably be gleaned from his judicial record on account of his participation in few, if any, decisions directly addressing those particular areas of law.

Judge Kavanaugh's Judicial Approach, Philosophy, and Influences

Notwithstanding the difficulty of predicting a nominee's future behavior, three overarching (and interrelated) considerations may inform an assessment of how a jurist is likely to approach the role of a Supreme Court Justice. First, the nominee's general approach to the craft of judging—a phrase that this report uses to refer to the process of how a judge approaches key aspects of the job, including writing legal opinions and resolving legal disputes on a multi-member court—may be an important consideration in predicting how a jurist would behave on the High Court. Second, the judge's overarching judicial philosophy, including how he evaluates legal questions as a substantive matter, is another central concern in gauging how a nominee may perform. Third, it may be helpful to reflect on a nominee's influences or judicial heroes, as those individuals may exhibit qualities that the nominee will aspire to emulate.

On all three fronts, there are a host of clues on how President Trump's latest nominee to the High Court views the proper role of a Supreme Court Justice. Indeed, Judge Kavanaugh is a well-known jurist with a robust record, composed of both judicial opinions and non-judicial writings, in which he has made his views on the law and the role of the judge fairly clear. This section begins by discussing how the nominee has approached the craft of judging, including by examining how he prepares for a case, his writing style, his approach to working with his colleagues on the D.C. Circuit, and how his opinions have fared at the Supreme Court. The section then turns to more substantive questions about Judge Kavanaugh's judicial philosophy, noting two key aspects that have undergirded how the nominee has resolved legal disputes in the cases before him on the appellate bench. Finally, this section notes the jurists that Judge Kavanaugh has identified as judicial role models, either because of their general approach to the craft of judging or for their judicial philosophy.

The Craft of Judging

After his nomination to the Supreme Court, commentators noted Judge Kavanaugh's "reputation on both sides of the aisle as a solid and careful judge," highlighting his diligence throughout the process of authoring opinions for the D.C. Circuit. For instance, according to Time Magazine , the nominee requires his law clerks to create, even for routine cases, "thick black binders" "filled with memos and briefs . . . [and] every law-review article" that has been written on the relevant topic, resulting in "binders stack[ing] up in the kitchenette in [Judge] Kavanaugh's chambers." In this vein, Judge Kavanaugh's colleague, Judge Laurence Silberman, called the nominee "one of the most serious judges" he "ever encountered." Echoing these comments are anonymous evaluations in the Almanac of the Federal Judiciary from attorneys who practiced in front of the nominee, describing Judge Kavanaugh as "extremely well prepared," "careful[]," and "thorough" in his approach.

Judge Kavanaugh's Writing Style . On a technical level, Judge Kavanaugh's writing has been widely praised for its clarity, including by the President, who described the nominee as "a brilliant jurist with a clear and effective writing style." And D.C. Circuit practitioners have likewise described Judge Kavanaugh's writing as "well reasoned," "thorough and clear," and "meticulous." As one commentator remarked, Judge Kavanaugh has "made a name for himself on the D.C. Circuit with clear, concise writing." It has also been observed that Judge Kavanaugh employs a number of mechanical techniques in crafting his judicial opinions, "includ[ing] strong lead-in sentences, lists, summaries, pointed questions, informal expressions and lots of repetition." Such techniques are evident throughout his written opinions wherein the nominee frequently employs bulleted lists, mathematical expressions and logical sequences —quite unusual in judicial writing—and regularly parses out the various components of his analysis through the use of introductory ordinals (i.e., first, second, third). Judge Kavanaugh also seemingly attempts to enhance the accessibility of his opinions through the occasional witticism or colloquialism. For instance, in one dissent, he equated the majority's decision to grant a writ of mandamus requiring a district court to enter a temporary stay to using a "chainsaw to carve your holiday turkey."

On a more substantive level, the nominee frequently includes an extensive discussion on the background and history of a given issue or topic, particularly in his dissenting opinions. Throughout his judicial and non-judicial writings, moreover, Judge Kavanaugh relies heavily on academic scholarship, citing law review articles, treatises, and other materials, perhaps reflective of the depth of research for which the nominee is renowned. The nominee has commented: "I love looking at treatises, law review articles. The more I can read about how we got in this statute to where we are, in this constitutional provision and how it's been applied. So academic writing does matter to me." In a similar vein, he has advised his fellow jurists:

[T]o be a good judge . . . we must keep learning. We do not know it all. . . . We have to constantly learn. We should draw from the law reviews and the treatises that professors have worked on for years to study a problem that we may have a couple of days to focus on. We should study the briefs and precedents carefully and challenge our instincts or prior inclinations. We are not the font of all wisdom.

Working on a Multi-member Court . Given Judge Kavanaugh's industrious approach toward legal research and writing, it may be unsurprising that the nominee has been incredibly prolific both on and off the bench, perhaps providing one indication of the quality of the nominee's work. With regard to judicial opinion writing, the nominee frequently writes separately to express his particular views on the law, authoring more separate opinions than any of his colleagues on the D.C. Circuit during the 12 years he served on the appellate bench. Moreover, as Table A-1 indicates, during the nominee's tenure on the D.C. Circuit, Judge Kavanaugh also authored separate opinions at a greater rate than his colleagues who served as active judges on that court during that entire time period.

While a judge's rate of concurrence or dissent in the abstract may reveal very little about the judge's ideological approach to a particular area of law, Judge Kavanaugh's tendency to write separately is somewhat probative in understanding his broad views on judging. As a general matter, some legal observers characterize a judge who tends to write separately as being more concerned with "getting the law right" than with countervailing interests that might otherwise lead a judge to join fully the opinion for the court. In a 2016 speech, Judge Kavanaugh noted that, while he "love[s] the idea of courts working together" and trying to "find common ground," he "dissent[s] a fair amount" and that "dissent is good" for a court.

The frequency with which Judge Kavanaugh has authored majority opinions for divided judicial panels may also support the view that consensus is not necessarily a driving force in the nominee's approach to opinion writing. As Table A-2 demonstrates, while not as pronounced as his own propensity to author concurring or dissenting opinions, Judge Kavanaugh's majority opinions have tended to draw more separate opinions (and dissents specifically) relative to the majority opinions of his colleagues the D.C. Circuit.

Jurists of various backgrounds have long debated the benefits and drawbacks of consensus on a multi-member court, and Judge Kavanaugh himself has claimed that a judge needs to "balance" various, competing interests when deciding whether to write separately. Regardless of the merits of that debate, the fact that the nominee tends to author separate opinions and prompts others to write separately may suggest that the nominee values independence and consistency in his judicial approach over consensus building, ideals the nominee has explicitly endorsed in his non-judicial writings. Moreover, Judge Kavanaugh's apparent propensity to eschew consensus in favor of candor may reflect his preference for clear rules in adjudication, as discussed in more detail below.

There may be limits to the lessons that can be drawn from the frequency in which the nominee writes separately from other colleagues on the bench or prompts others to write separately. The choice to write separately is one that stems from various factors, and may simply depend on the personality and preferences of an individual judge, or the nature of the dispute before the court. More broadly, while the data contained in Table A-1 and Table A-2 may indicate Judge Kavanaugh's willingness to depart from the views of his colleagues, legal commentators have broadly noted his "very good reputation" for promoting collegiality on the D.C. Circuit and for "working with people across ideological lines." This reputation aligns with the nominee's public comments about how a judge should behave toward his colleagues. For instance, in a 2016 speech, Judge Kavanaugh described the "proper demeanor" for a judge as having empathy for one's colleagues, "demonstrat[ing] civility," and not "be[ing] a jerk." In his remarks during his Supreme Court nomination ceremony, Judge Kavanaugh described the seventeen other judges he worked with on the D.C. Circuit as "colleague[s]" and "friend[s]."

While a judge's propensity to write on behalf of himself or a divided panel may suggest that the judge has idiosyncratic views on the law, Judge Kavanaugh's record on appeal to the Supreme Court appears to belie such a suggestion. As Table A-3 indicates, during the nominee's twelve years of service on the D.C. Circuit, the Supreme Court has reversed an opinion authored by Judge Kavanaugh only once, and reversed one additional opinion in which the nominee joined. Relative to his colleagues, the dearth of scrutiny by the Supreme Court of Judge Kavanaugh' s opinions is notable and could be a metric by which to gauge the nominee's work.

Perhaps more telling of the strength of the nominee's record before the Court are several cases in which the Supreme Court adopted the reasoning in Judge Kavanaugh's opinions. As Table A-3 demonstrates, the Supreme Court has reversed a number of judgments from which the nominee dissented in the lower court. In at least five of these cases, the nominee's reasoning was adopted, at least in part, by the Supreme Court. Beyond the cases in which the Court directly reviewed a judgment in which Judge Kavanaugh authored a substantive opinion, in at least five other cases, the Supreme Court adopted, at least in part, reasoning from an earlier opinion of the nominee in a separate case (i.e., not the lower court opinion under review by the Supreme Court).

More broadly, the Supreme Court has cited Judge Kavanaugh's opinions more frequently than it has cited other judges. As noted in Table A-4 , the Supreme Court has cited the nominee's separate opinions (i.e., dissents and concurrences), either in a majority or an individual Justice's separate opinion, eight times during the nominee's tenure on the D.C. Circuit. As Table A-5 indicates, no other D.C. Circuit judge who served on active status for Judge Kavanaugh's entire tenure on that court was cited by the Supreme Court as much during this same time period. And, as Table A-6 demonstrates, the Supreme Court cited only one other federal appellate judge who served on active duty during Judge Kavanaugh's entire tenure on the D.C. Circuit—Judge Jeffrey Sutton of the Sixth Circuit—more frequently than the nominee.

While there may be limits as to what can reasonably be discerned by the sheer number of times the Supreme Court cites a particular jurist's separate opinions, these quantitative data suggest that the nominee is an influential lower court judge, and one the Justices on the Supreme Court hold in some esteem. This assessment also finds support in qualitative assessments of Judge Kavanaugh by legal commentators, who have described the nominee as one who approaches the craft of judging with "serious[ness]" and "commands wide and deep respect among scholars, lawyers and jurists."

Judicial Philosophy

Turning to the question of judicial philosophy, while commentators have described Judge Kavanaugh's interpretative approach in various ways—including as "conservative" or "pragmatic" —the nominee's own writings have been fairly clear as to his judicial approach. Perhaps the best insights into Judge Kavanaugh's approach toward judging come from a speech he delivered in 2017 at Notre Dame Law School. Specifically, in themes that pervade both his judicial opinions and his non-judicial writing, Judge Kavanaugh focused on two central visions for adjudication in which he "believe[s] very deeply": (1) the "rule of law as a law of rules" and (2) the role of the judge as "umpire."

The Rule of Law as a Law of Rules . Judge Kavanaugh's first vision for judging suggests that the nominee embraces a more formalist view of the law, favoring clarity to flexibility when rendering legal opinions. The phrase "rule of law as a law of rules" itself references Justice Antonin Scalia's famous speech from 1989 in which he argued for a more formalist approach that embraced clear rules and principles in lieu of balancing tests that, in the view of Justice Scalia, transformed the judge from a determiner of law to a finder of fact. Judge Kavanaugh has embraced legal formalism in a variety of contexts. For the nominee, critical questions for the judiciary include how "can we make the rule of law more stable, and how can we increase confidence in judges as impartial arbiters of the rule of law"? The answer to these questions for Judge Kavanaugh is to establish "stable rules of the road" for interpreting law "ahead of time," thereby enhancing the legitimacy of the judiciary by "prevent[ing] [courts] from allowing . . . personal feelings about a particular issue [to] dictate" how a case is resolved. As a result, Judge Kavanaugh has maintained that judicial decisionmaking that is not grounded in clear rules "threatens to undermine the stability of the law and the neutrality (actual and perceived) of the judiciary."

With respect to statutory interpretation, the nominee has criticized binaries in which the invocation of a particular interpretive rule depends on a threshold question about whether the text being interpreted is ambiguous or clear. Ambiguity is often the threshold inquiry for determining whether a court should, for example, employ legislative history as an interpretive aid or defer to an administrative agency's legal interpretation. For Judge Kavanaugh, questioning whether text is ambiguous is problematic because "there is no objective or determinate way to figure out whether something is ambiguous." Because, in Judge Kavanaugh's view, "judgments about clarity versus ambiguity turn on little more than a judge's instincts," such an approach to interpretation threatens judicial legitimacy, as "it is hard for judges to ensure that they are separating their policy views from what the law requires of them." Instead, as discussed in more detail below, the nominee has argued that judges should "stop" using the "ambiguity trigger" in statutory interpretation and instead "strive to find the best reading of the statute" based on the text, context, and established rules of construction.

Judge Kavanaugh's criticism of modern constitutional interpretation parallels his apprehensions about statutory interpretation, with the nominee expressing his broad concerns about "vague and amorphous" standards employed in constitutional interpretation, which he views as "antithetical to impartial judging." One of the nominee's primary criticisms concerns the use of tiers of scrutiny, such as strict scrutiny or rational basis review, to evaluate whether government action is permissible. Central to the nominee's criticism of the tiers of scrutiny is their requirement that a judge make a determination about whether a governmental interest is sufficiently "compelling" or "important," an inquiry that he views as lacking any objective measurement, and which puts the judge "in the position of making judgment calls that inevitably seem rooted in policy, not law." In this vein, Judge Kavanaugh's critique of the tiers of scrutiny echoes similar criticisms by Justice Clarence Thomas, who observed in a 2016 dissent that the "Constitution does not prescribe tiers of scrutiny," as well as Justice Scalia, who once described the tiers of scrutiny as adding an "element of randomness" to constitutional interpretation.

While Judge Kavanaugh has been less specific as to how judges "should square up to the problem" of ambiguity in constitutional interpretation, his dissent in Heller v. District of Columbia (Heller II) suggests that he believes focusing on a constitutional provision's "text, history, and tradition" provides a more stable alternative. The "key threshold question" in Heller II concerned the constitutional test that a court should "employ to assess" whether a gun law comported with the Second Amendment. And while acknowledging that in its cases interpreting the Second Amendment, "the [Supreme] Court never said something as succinct as 'Courts should not apply strict or intermediate scrutiny but should instead look to text, history, and tradition to define the scope of the right and assess gun bans and regulations,'" Judge Kavanaugh concluded that the "clear message" to "take away from the Court's holdings and reasoning" is to eschew balancing tests "in favor of categoricalism—with the categories defined by text, history, and tradition."

At the same time, there are limits to Judge Kavanaugh's formalism. As the nominee has acknowledged, "there are areas of the law that sometimes entail discretion. And it is important to acknowledge that sometimes judges must exercise reasoned decision-making within a law that gives judges some discretion over the decision." Accordingly, Judge Kavanaugh has cautioned against a vision of judging that could be "caricatured as being 'every case is simply mechanical and robotic for judges.'" To the nominee, there are certain cases where "[t]here is a body of precedent that helps inform" a decision, but nonetheless the judge must exercise some degree of discretion in reaching a decision. Judge Kavanaugh identifies a number of questions that he believes require such discretion, including, among others: "what is 'reasonable' under the Fourth Amendment?"; "[w]hat is a 'compelling government interest' under the Religious Freedom Restoration Act?"; and "what are 'unreasonable restraints of trade' for purposes of the Sherman Act." At the same time, the nominee has contended that ambiguity in the law exists in "far fewer places than one would think," and, to the extent possible, judges should avoid "injecting" ambiguity into the heart of interpretation.

Judge as Umpire . The second, and closely related, pillar of Judge Kavanaugh's judicial philosophy—an embrace of the role of the judge as "umpire"—derives from an analogy Chief Justice John Roberts used during his Supreme Court confirmation hearing wherein he likened a judge's job to that of an umpire in baseball. During that hearing, the future Chief Justice described the umpire and judge as having "limited" roles in that a good judge, like an umpire, does not "make the rules," but instead "applies" them to ensure "everybody plays by the rules." Judge Kavanaugh has discussed "the notion of judges as umpires" extensively in his non-judicial writings, highlighting his "agree[ment] with that vision of the judiciary." According to the nominee:

The American rule of law . . . depends on neutral, impartial judges who say what the law is , not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a perfect world, at least as I envision it, the outcomes of cases would not often vary based solely on the backgrounds, political affiliations, or policy views of judges.

In this vein, Judge Kavanaugh has defined "a neutral, impartial judiciary" as one "that decides cases based on settled principles without regard to policy preferences or political allegiances or which party is on which side in a particular case." This vision of a neutral, impartial judiciary is echoed throughout the nominee's non-judicial writings and speeches, as well as in his written opinions and during his confirmation hearing in 2006 as a nominee to the D.C. Circuit. For instance, Judge Kavanaugh emphasized at that hearing his view that "the worst moments in the Supreme Court's history have been moments of judicial activism . . . where the Court went outside its proper bounds . . . in interpreting clauses of the Constitution to impose its own policy views and to supplant the proper role of the legislative branch." As a result, the nominee has highlighted his belief "in judicial restraint, recognizing the primary policymaking role of the legislative branch in our constitutional democracy."

These broad statements about the role of the judge as a neutral umpire may prompt the question as to how the nominee strives to achieve such neutrality. In accepting the nomination to the Supreme Court, Judge Kavanaugh articulated what he viewed as a "straightforward" means to ensure that a judge remains "independent" and "interpret[s] the law" but does "not make the law." Specifically, Judge Kavanaugh stated that a judge must interpret the Constitution "as written, informed by history and tradition and precedent." At a high level, this statement summarizes the three main aspects of the nominee's approach to ensuring that a judge remains an umpire, an approach that emphasizes (1) the primacy of the text of the law being interpreted, (2) an awareness of history and tradition, and (3) adherence to precedent. Each of these themes is examined below.

Textualism. A foundational aspect of Judge Kavanaugh's judicial philosophy is his embrace of textualism, the doctrine that the words of a governing text are paramount to understanding the meaning of a law. As discussed in more detail below, Judge Kavanaugh has, like Justice Scalia, emphasized the "centrality of the words of the statute" and counseled against the use of certain "substantive principles of interpretation" that, in the nominee's view, pose risks to judges' roles as "neutral, impartial umpires in certain statutory interpretation cases." Thus, Judge Kavanaugh has advised that "[t]he judge's job is to interpret the law, not to make the law or make policy. So, read the words of the statute as written." In this vein, the nominee has described his embrace of textualism as intended to promote a neutral, impartial judiciary; in his words: "This tenet—adhere to the text—is neutral as a matter of politics and policy. The statutory text may be pro-business or pro-labor, pro-development or pro-environment, pro-bank or pro-consumer. Regardless, judges should follow clear text where it leads."

In addition to figuring prominently in statutory interpretation, Judge Kavanaugh's textualist approach extends to constitutional interpretation. The nominee has remarked that the one factor that "matters above all in constitutional interpretation and in understanding the grand sweep of constitutional jurisprudence . . . is the precise wording of the constitutional text. It's not the only factor, but it's the anchor, the magnet, the most important factor that directs and explains much of constitutional law . . . ." Accordingly, Judge Kavanaugh has instructed that judges must "[r]ead the text of the Constitution as written . . . . Don't make up new constitutional rights that are not in the Constitution. Don't shy away from enforcing constitutional rights that are in the text of the Constitution. Changing the Constitution is for the amendment process. Changing policy within constitutional bounds is for the legislatures."

Nonetheless, there are limits to Judge Kavanaugh's embrace of textualism. Specifically, the nominee has "emphasize[d] that the text is not the end-all of statutory interpretation," and has remarked that "on occasion the relevant constitutional or statutory provision may actually require the judge to consider policy and perform a common law-like function." Judge Kavanaugh suggests there are a variety of cases "where the judicial inquiry requires determination of what is reasonable or appropriate," and these "are less a matter of pure interpretation than of common law-like judging." Accordingly, while the nominee's writings demonstrate a clear subscription to textualism and a belief that "[m]any cases come down to interpretation of the text of the Constitution, a statute, a rule, or a contract," he also seems to leave room for a recognition that "not every case comes down to pure interpretation."

History and Tradition. Beyond a reliance on a law's text to promote judicial neutrality, Judge Kavanaugh's judicial opinions are frequently guided by what he refers to as "history and tradition." The nominee, however, has not embraced a narrow view as to what particular "history" and "tradition" can inform legal interpretation, including constitutional interpretation. While some commentators have labeled Judge Kavanaugh an originalist in the Scalia tradition, others have observed that the nominee does not appear to "call himself an originalist, and his opinions on the appellate court suggest that he uses less originalist analysis than Justice Thomas or Justice Gorsuch." Indeed, in a 2017 speech, while suggesting that Justice Scalia's focus on "history and tradition" "might" be consistent with the vision of a judge as an impartial umpire, Judge Kavanaugh stated that he does not "[a]t the moment . . . have a solution" to his concerns about the indeterminacy of constitutional interpretation.

In contrast to Justice Neil M. Gorsuch, who as a judge on the Tenth Circuit openly endorsed constitutional interpretations that relied on the Constitution's "original public meaning," Judge Kavanaugh has not been as explicit. In perhaps the nominee's closest embrace of originalism, Judge Kavanaugh contended in his dissenting opinion in Heller II that the "post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text." Notably, the dissent continued:

The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The constitutional principles do not change (absent amendment), but the relevant principles must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown to the Constitution's Framers. To be sure, applying constitutional principles to novel modern conditions can be difficult and leave close questions at the margins. But that is hardly unique to the Second Amendment. It is an essential component of judicial decisionmaking under our enduring Constitution.

Nonetheless, in his Heller II dissent and elsewhere, Judge Kavanaugh, when discussing history and tradition to "inform the interpretation of a constitutional provision," has looked to both pre- and post-ratification history and tradition. In a dissenting opinion in PHH Corp. v. CFPB , for instance, the nominee wrote that "in separation of powers cases not resolved by the constitutional text alone, historical practice helps define the constitutional limits on the Legislative and Executive Branches." In PHH Corp. , the majority of the D.C. Circuit sitting en banc held that the CFPB's structure of governance was constitutional under Article II. Judge Kavanaugh disagreed, canvassing the nation's historical post-ratification experience with the structure of independent agencies, and concluding that "the CFPB's departure from historical practice matters in this case because historical practice matters to separation of powers analysis."

More broadly, Judge Kavanaugh's non-judicial writings might be read to suggest he elevates a textualist approach over an originalist philosophy. For instance, the nominee has suggested:

When we think about the Constitution and we focus on the specific words of the Constitution, we ought to not be seduced into thinking that it was perfect and that it remains perfect. The Framers did not think that the Constitution was perfect. And they knew, moreover, that it might need to be changed as times and circumstances and policy views changed.

The nominee has also cast some doubt on the reliability of some of the source materials frequently relied upon by originalists:

[B]e careful about even The Federalist . . . That's not the authoritative interpretation of the words. You've got to be careful about some of the ratification debates. You've got to be careful about different people at the Convention itself. They had different views. So when there's compromise, all the more reason for me to stick as close as you can to what the text says.

At the same time, while seemingly "not a dyed-in-the-wool originalist like Scalia," as one observer has put it, Judge "Kavanaugh has relied on originalist principles." In several speeches, for example, the nominee has endorsed the originalist concept of the "enduring constitution," albeit in connection with an overarching textualist approach to constitutional interpretation: "For those of us who believe that the judges are confined to interpreting and applying the Constitution and laws as they are written and not as we might wish they were written, we . . . believe in a Constitution that lives and endures." And the notion of an enduring Constitution has figured in Judge Kavanaugh's written opinions for the D.C. Circuit. Beyond his dissent in Heller II , in his dissent in Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB), for instance, Judge Kavanaugh stressed the importance of original meaning in conjunction with a textualist approach, asserting that "it is always important in a case of this sort to begin with the constitutional text and the original understanding, which are essential to proper interpretation of our enduring Constitution."

Precedent. Judge Kavanaugh's vision of a neutral, impartial judiciary—composed of judges strictly applying stable rules of law—perhaps suggests how the nominee might view the doctrine of stare decisis and the role of precedent in deciding cases. During his confirmation hearing in 2006 as a nominee to the D.C. Circuit, Judge Kavanaugh stated: "I believe very much . . . in following the Supreme Court precedent strictly and absolutely. . . . I think that is very important for the stability of our three-level system for lower courts to faithfully follow Supreme Court precedent . . . ." Indeed, in his non-judicial writings, the nominee has emphasized the importance of stare decisis:

We operate in a system built on Supreme Court precedent. As lower court judges, we must adhere to absolute vertical stare decisis, meaning we follow what the Supreme Court says. And to be a good lower court judge, you must follow the Supreme Court precedent in letter and in spirit. We should not try to wriggle out of what the Supreme Court said, or to twist what the Supreme Court said, or to push the law in a particular direction . . . .

That Judge Kavanaugh's judicial philosophy incorporates adherence to precedent is also evident in his written opinions issued in a number of high-profile cases over the last decade. Recently, in Garza v. Hargan , for instance, the nominee dissented from the court's en banc order in a case involving whether an alien minor without lawful immigration status in federal custody may obtain an abortion. In so doing, Judge Kavanaugh emphasized that "our job as lower court judges is to apply the precedents and principles articulated in Supreme Court decisions to the new situations." More generally, the nominee has warned that judges should follow Supreme Court cases both "in letter and in spirit," and has stated that even where the governing precedent is controversial or has engendered "vigorous dissents," the job of the lower court is not "to re-litigate or trim or expand Supreme Court decisions," but to follow those decisions "as closely and carefully and dispassionately as we can." In another dissenting opinion, Judge Kavanaugh more colorfully stated that lower courts must "follow both the words and the music of Supreme Court opinions."

Notwithstanding these broad statements about the role of precedent for lower courts , it is difficult to state with certainty how Judge Kavanaugh would apply the doctrine of stare decisis in a particular case if he were elevated to the Supreme Court due to the unique nature of that position relative to his current role. The nominee's previous judicial writings were from the perspective of a D.C. Circuit judge—one bound to follow Supreme Court precedent and able to override existing circuit precedent only with the concurrence of a majority of the en banc court. Stare decisis applies quite differently, however, when the Supreme Court reconsiders its own cases.

Nonetheless, Judge Kavanaugh's writings give some clues as to how he might approach the question of whether to overturn existing precedent. In one speech, the nominee stated that horizontal stare decisis—that is, the precedential effect that a court's own decisions have on that same court—"has some flexibility." In another talk, Judge Kavanaugh doubted whether existing Supreme Court case law on stare decisis provided a principled, restraining test for when to overrule prior cases. Responding to a question as to whether there is a single standard a court could use to determine whether to overturn a prior decision, the nominee noted that it is "hard to have a set formula for overruling that's going to work in all cases." Judge Kavanaugh described the Supreme Court's existing test as one that requires the Court to overrule when a case is "really wrong and has really significant practical effects, and there hasn't been reliance interests of the kind you would have with a property or contract decision." Nevertheless, the nominee criticized this test, remarking that it does "not really" "bind[ ]," or "tell[ ] you in advance with Justices of different stripes when" to overrule a case. In line with his general judicial philosophy that tends to emphasize stability and clear rules from the judiciary, Judge Kavanaugh expressed concern that the current formula does not give "much predictability or guidance."

While the nominee has not further elaborated on his overarching theory for when to diverge from precedent, his general judicial philosophy, as noted, is based in part on the theory that judges should set clear rules in advance and then follow those rules. As Judge Kavanaugh has noted, "[e]ven in those cases where there is discretion . . . [and] judges are assigned what may be described as common-law-like authority," they must still adhere to certain principles: "we try to follow precedent and have a stable body of precedent"; "we try to write our decisions in reasoned and clear ways"; "we try to be consistent in how we go about deciding like cases alike"; and "we do so candidly." This emphasis on stability and predictability may suggest a reluctance to overturn well-established precedent.

At the same time, Judge Kavanaugh's opinions reveal that he is less likely to follow Supreme Court case law or prior D.C. Circuit decisions when he believes a prior case has been significantly undermined by subsequent factual developments or is inconsistent with prevailing doctrine. For example, in United States v. Burwell , Judge Kavanaugh argued in dissent that the D.C. Circuit should not have followed its prior opinion that had "been undermined" by a subsequent Supreme Court decision. And, as discussed in more detail below, in a series of cases the nominee has questioned the continuing viability of the Supreme Court's decision in Turner Broadcasting System, Inc. v. FCC , most recently and most directly in a concurring opinion in Agape Church, Inc. v. FCC . In Agape Church , Judge Kavanaugh maintained that the factual foundation for Turner —the monopolistic nature of the cable television market—had been altered since the case was written in 1994, and, therefore, "the constitutional foundation . . . collapsed with it." The nominee suggested that future courts reviewing the constitutionality of the relevant provisions could reach a different result than the Supreme Court did in Turner , stating that stare decisis required courts to follow only the "constitutional principles that undergird Turner ," and that applying those principles to the modern market would "lead[] to an entirely different result." As a consequence, Judge Kavanaugh's Agape Church concurrence seems to express a belief that in certain circumstances, a court may depart from a prior decision's result so long as it remains true to its broader, underlying principles.

Finally, it should be noted that the nominee has in several opinions criticized two Supreme Court decisions that declined to strike down statutes restricting the President's power to remove certain executive officers: Humphrey's Executor v. United States and Morrison v. Olson . While judges may be reluctant or unable to overrule prior cases, they frequently distinguish precedent with which they disagree from the disputes before them. As discussed below, Judge Kavanaugh has authored a number of opinions arguing that the courts should construe the scope of Humphrey's Executor and Morrison narrowly . Perhaps his most pointed remarks on Morrison came at an event in 2016 at the American Enterprise Institute: when asked whether he would give an example of "a case that deserves to be overturned," the nominee volunteered " Morrison v. Olson ," stating that the case had been "effectively overruled, but [he] would put the final nail in." While this comment was made in off-the-cuff remarks, when viewed together with his judicial opinions, it suggests that Judge Kavanaugh disagrees with the reasoning of Morrison , and may consider the case sufficiently "wrong" that it should be reconsidered.

Judicial Influences

Finally, it may be instructive to note some of Judge Kavanaugh's judicial influences or contemporaries whose approach to judging the nominee has praised, as these jurists may provide insight into who he might model his judicial approach after if he were to be elevated to the High Court. As is perhaps evident in the importance the nominee places on judicial formalism and the concept of the judge as a neutral umpire, Justice Scalia and Chief Justice Roberts are two of the nominee's judicial role models. With regard to Justice Scalia, Judge Kavanaugh has stated that "Justice Scalia was and remains a judicial hero and role model to many throughout America," one who believed "that federal judges are not common-law judges and should not be making policy-laden judgments." Of particular note, the nominee credits Justice Scalia with bringing "about a massive and enduring change in statutory interpretation," one focused on "the centrality of the words of the statute." And with regard to Chief Justice Roberts, Judge Kavanaugh has described him as "lead[ing] the Court and the judiciary with [a] firm but humble touch."

But Justice Scalia and Chief Justice Roberts are not the only jurists Judge Kavanaugh has commented on when describing who has influenced his view of judging. The nominee has lauded several jurists with varying judicial philosophies, including former Chief Justice William Rehnquist, as well as Justices Robert Jackson, Byron White, and Elena Kagan. In a speech dedicated to Chief Justice Rehnquist, the nominee described him as his "first judicial hero" and stated that "few justices in history have had as much impact as [Chief Justice] Rehnquist." The nominee remarked that as early as his law school days, he found frequent agreement with Chief Justice Rehnquist's opinions. Of particular significance to Judge Kavanaugh is the "importance of [Chief Justice] Rehnquist to modern constitutional law." Judge Kavanaugh has attributed to Chief Justice Rehnquist many of the principles that inform the nominee's judicial philosophy. According to the nominee, "[d]uring [Chief Justice] Rehnquist's tenure, the Supreme Court unquestionably changed and became more of an institution of law, where its power is to interpret and to apply the law as written, informed by historical practice, not by its own personal and policy predilections."

As to Justices Jackson and White, Judge Kavanaugh identified both as "role models" during his confirmation hearing in 2006 as a nominee to the D.C. Circuit. Specifically, Judge Kavanaugh pointed to Justice Jackson's concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer , a landmark separation-of-powers case wherein Justice Jackson established a three-part framework for assessing executive wartime powers. The nominee described the framework as "a work of genius . . . in terms of setting out the different categories of Presidential power and Congressional power in times of war and otherwise," and has cited it throughout his writings and speeches as influential on the nominee's view of the separation of powers. Judge Kavanaugh has also identified Justice Jackson as the "role model for all executive branch lawyers turned judges," such as Judge Kavanaugh himself. As to Justice White, Judge Kavanaugh has written less about his influence, but approved of Justice White's "approach to judging" characterized by "judicial restraint."

Finally, Judge Kavanaugh has suggested an affinity with Justice Kagan based, in part, on their similar backgrounds in the executive branch. He has also cited Justice Kagan throughout his judicial and non-judicial writings, often alongside citations to Justice Scalia. While citations alone may not suggest more than respect for a colleague and agreement on discrete issues, as opposed to a wholesale endorsement of a jurist's judicial philosophy, at least one commentator has suggested that "[t]he Kavanaugh-Kagan relationship may be one to watch in particular, should they serve together. As her offer—and his acceptance—to teach at Harvard suggests, both have seen advantage in detente."

Statutory Interpretation250

One cross-cutting issue foundational to understanding Judge Kavanaugh's jurisprudence is his theory of statutory interpretation. The nominee has been quite clear about his own views on this subject, actively engaging in ongoing debates within the legal community over the proper theories and tools to employ when interpreting statutes. Judge Kavanaugh is an avowed textualist—that is, a jurist who will generally favor a statute's text over its purpose when interpreting the law's meaning, only crediting statutory purpose to the extent that it is evident from the text. As the nominee remarked in a 2016 book review: "The text of the law is the law." In this vein, Judge Kavanaugh has lauded Justice Scalia's textualist influence on the field of statutory interpretation —and has also praised Justice Kagan for her more textualist opinions.

Because of his commitment to textualism, Judge Kavanaugh's approach to statutory interpretation potentially differs from Justice Kennedy's, as the retiring Justice did not necessarily adhere to one single theory of statutory interpretation. In practice, though, the two jurists appear to have more in common than their general approaches toward reading statutes might suggest. Similar to Judge Kavanaugh, and many other judges, Justice Kennedy would "begin with the text" of a statute and would give that text's ordinary meaning significant weight. Moreover, Justice Kennedy, at times, disclaimed attempts to discover Congress's original intent as divorced from the text. But Justice Kennedy would also sometimes go beyond the disputed text to consider the statutory scheme as a whole, looking to its operation and the practical consequences of various interpretations. In one concurring opinion, Justice Kennedy said: "Faced with a choice between two difficult readings of what all must admit is not optimal statutory text, the Court is correct to adopt the interpretation that makes the most sense." Though Judge Kavanaugh's textualist philosophy would on its face appear to be inconsistent with Justice Kennedy's more pragmatic approach, the nominee's opinions and other writings reveal that he also considers the legislative process and gives significant weight to the way a statute will be implemented. Accordingly, if confirmed, while Judge Kavanaugh could further tip the Court toward a more textualist approach to statutory interpretation, he might still invoke some of the more pragmatic considerations that Justice Kennedy sometimes relied on in his own analyses.

This section first outlines Judge Kavanaugh's general theory of statutory interpretation, as announced in his non-judicial writings and in his opinions. It then explores in more detail how the nominee has applied this theory to resolve specific cases, examining the interpretive tools the nominee has used to determine a statute's meaning. Finally, it describes the nominee's views on severability, a doctrine closely related to statutory interpretation that may arise when courts consider the constitutionality of a provision situated within a larger statutory scheme.

General Theory

Judge Kavanaugh's theory of statutory interpretation is based on his broader views about separation of powers. As discussed, the nominee has argued that the Constitution requires judges to adhere to a specific role: to serve as "neutral, impartial . . . umpires" who "say what the law is, not what the law should be." In his view, focusing on a statute's text is the best way to fulfill this judicial role. Because it is "Congress and the President—not the courts" who "together possess the authority and responsibility to legislate," he believes that "clear statutes are to be followed." In one article, Judge Kavanaugh described his approach to "determin[ing] the 'best reading' of a statutory text" as follows:

Courts should try to read statutes as ordinary users of the English language might read and understand them. That inquiry is informed by both the words of the statute and conventional understandings of how words are generally used by English speakers. Thus, the "best reading" of a statutory text depends on (1) the words themselves, (2) the context of the whole statute, and (3) any other . . . general rules by which we understand the English language.

As this statement suggests, like other textualists, Judge Kavanaugh favors text-based tools of statutory interpretation and generally eschews the use of legislative history. The nominee has argued on textualist grounds that judges should be cautious not only of legislative history, but of any interpretive tools that rely on ambiguity as a trigger for application. Judges frequently agree that a court should turn only to certain tools—like legislative history—if the statutory text is ambiguous. Judge Kavanaugh has raised concerns about this approach, arguing that it is difficult to determine whether a particular statute is ambiguous "in a neutral, impartial, and predictable fashion." In line with his broader formalist views, he has expressed concern that the ambiguity determination "turns on little more than a judge's instincts," making it "harder for judges to ensure that they are separating their policy views from what the law requires of them." Accordingly, the nominee has called for judges to examine carefully their use of any doctrines that are dependent on an initial finding of ambiguity.

Application and Interpretive Tools

Using his textualist philosophy to interpret a disputed statutory provision, Judge Kavanaugh often begins by looking to a word's "plain meaning," asking how the term would be understood in "common parlance." He sometimes relies on dictionaries as evidence of a word's ordinary meaning. The nominee also looks to the surrounding statutory text for interpretive context. Judge Kavanaugh's opinion in United States v. Papagno provides a clear example of this textualist approach. In that case, the D.C. Circuit was asked to interpret the Mandatory Victims Restitution Act (MVRA), which requires, in relevant part, that defendants reimburse victims of specified crimes for, among other things, "necessary . . . expenses incurred during participation in the investigation or prosecution of the offense." The defendant in Papagno had stolen computer equipment from his employer, the Naval Research Laboratory (NRL). At issue was whether the MVRA encompassed the costs of an internal investigation conducted by the NRL, where that investigation "was neither required nor requested by the criminal investigators or prosecutors," and the NRL stated that the investigation was conducted for its "own purposes."

Writing the majority opinion for a unanimous panel, Judge Kavanaugh concluded that the MVRA did not authorize restitution for the internal investigation. He relied on dictionary definitions, "common parlance," and Supreme Court cases interpreting other federal statutes to decide that the NRL was not "participat[ing] in the investigation or prosecution of the offense" when it conducted the internal investigation. Judge Kavanaugh also reviewed the statutory context, situating the disputed provision of the MVRA within the "landscape" of other federal statutes governing restitution. He compared the disputed provision of the MVRA to a 2008 amendment of a different restitution statute, noting that in the other statute, Congress had "authorized restitution for 'an amount equal to the value of the time reasonably spent by the victim in an attempt to remediate the intended or actual harm incurred by the victim from the offense.'" In his view, this other statute would "authorize the restitution" that the NRL sought. He inferred that because "Congress did not add similar language to" the MVRA provision disputed in the case before the court, Congress did not intend to authorize such restitution in the MVRA.

Thus, Judge Kavanaugh's opinion in Papagno relied on quintessential textualist tools like ordinary meaning and statutory context to resolve the interpretive question. Notably, the nominee acknowledged in the opinion that "several other courts of appeals have taken a broader view of the restitution provision," and ultimately, the courts of appeals in eight other circuits concluded that the MVRA did cover the costs of private investigations. This last term, the Supreme Court resolved the split in Lagos v. United States , ultimately adopting a more narrow view of the MVRA.

Judge Kavanaugh sometimes invokes the canons of construction, which provide general presumptions about how courts should read statutes. There are two types of canons: semantic canons , which reflect the ways that people ordinarily use words, often mirroring ordinary rules of grammar; and substantive canons , which create presumptions favoring or disfavoring a particular substantive outcome. Textualists generally "favor the use of canons, particularly the traditional linguistic canons." Judge Kavanaugh uses these canons, especially the semantic canons, but has called for some reforms in their use. Notably, he advocates the use of semantic canons only to the extent that they actually reflect the way people "understand the English language," and, in line with his formalist views, has argued against both semantic and substantive canons that, in his view, cannot be applied in a consistent and principled way.

First, Judge Kavanaugh has argued that judges should "shed" any semantic canons that do not actually "reflect the meaning that people, including Members of Congress, ordinarily intend to communicate with their choice of words." For instance, the nominee has questioned the rule against surplusage, which states that courts should generally presume that each word and clause of a statute has a distinct, non-redundant meaning, noting that "humans speak redundantly all the time, and it turns out that Congress may do so as well." Accordingly, in one dissenting opinion, Judge Kavanaugh concluded that the language of the disputed statute made "redundancy . . . inevitable," arguing that the court should "read the provisions according to their terms, recognizing that Congress often wants to make 'double sure'—a technique so common that it has spawned its own Latin canon, ex abundanti cautela ." The nominee has also argued against using any semantic canons that "require judges to make difficult policy judgments that they are ill-equipped to make."

In contrast to the semantic canons, Judge Kavanaugh has more broadly questioned the use of the substantive canons, arguing that canons should be eliminated if they are not justified by "constitutional or quasi-constitutional values." But, for example, he has applied the presumption of mens rea—the presumption that crimes include a mental state requirement—noting that it "embodies deeply rooted principles of law and justice that the Supreme Court has emphasized time and again." Based on his broader concerns about the use of any tools that are only invoked in the case of textual ambiguity, he has suggested that judges should not turn to the substantive canons until after they have sought "the best reading of the statute by interpreting the words of the statute, taking account of the context of the whole statute, and applying the agreed-upon semantic canons."

For this reason, Judge Kavanaugh has, as discussed, argued that courts generally should not use legislative history to interpret statutes: "the clarity versus ambiguity trigger for resorting to legislative history means that the decision whether to resort to legislative history is often indeterminate." Accordingly, he has declined to use legislative history to interpret a statute if the text is clear. The nominee has also echoed other textualist concerns regarding the use of legislative history. For example, in a dissenting opinion in Agri Processor Co. v. National Labor Relations Board , Judge Kavanaugh argued that the court should not rely on a committee report because it was "in no way anchored in the text" of the relevant statute. At issue in that case was whether "undocumented aliens" qualified as "'employees' protected by the National Labor Relations Act [(NLRA)]." Relying primarily on the statutory text and a substantive canon, the majority opinion concluded that the NLRA covered undocumented aliens. But the court also invoked legislative history to support its conclusion, in the form of two committee reports. Judge Kavanaugh rejected these committee reports, citing "the usual cautions":

Committee reports are highly manipulable, often unknown by most Members of Congress and by the President, and thus ordinarily unreliable as an expression of statutory "intent." Committee reports are not passed by the House and Senate and presented to the President, as required by the Constitution in order to become law.

Ultimately, the nominee concluded that, because "the term 'employee' in the NLRA must be interpreted in conjunction with the immigration laws," that term excluded "an illegal immigrant worker."

Although Judge Kavanaugh has expressed concern about doctrines that invite judges to rely on personal assessments of meaning, he has also acknowledged that in some circumstances it is unavoidable that a judge will have to "consider policy and perform a common law-like function." In many cases, he relies on his own assessments of whether a particular interpretation aligns with "common" meaning or practice, adverting to his own understanding of what is "common." In this regard, the nominee invokes more pragmatic concerns that could be seen as extra-textual, asking how a statutory scheme functions and whether a particular interpretation makes sense within that scheme. In one case, for instance, writing for a majority of the court, Judge Kavanaugh rejected a reading of a statute that would have "tie[d] the system in knots and greatly hinder[ed] (if not prevent[ed]) the Department's exercise of any discretionary authority set forth by the regulations."

To take another example, dissenting in White Stallion Energy Center v. EPA , Judge Kavanaugh interpreted a statutory term by reference to "common sense, common parlance, and common practice." In that case, the D.C. Circuit considered the EPA's decision to issue a rule governing emissions from electric utilities. The governing statute gave the EPA authority to issue "appropriate and necessary" regulations. The nominee argued that the EPA violated this statute when it "exclude[d] consideration of costs in determining whether it [was] 'appropriate'" to issue the regulation. To support this "common sense" understanding of the word "appropriate," Judge Kavanaugh drew from a variety of sources, including statements from administrative law experts and past practices of the executive branch. The nominee also used legislative history to support his understanding of "the congressional compromise" that was embodied in the relevant statute.

In a similar vein, Judge Kavanaugh has invoked two different substantive canons that draw from general understandings about how Congress operates: the absurdity doctrine , which allows courts to depart from the text's plain meaning if it would produce an absurd result, and the "elephants in mouseholes" canon, which provides that courts should not presume that Congress "alter[ed] the fundamental details of a regulatory scheme in vague terms or ancillary provisions." Scholars and judges have argued these two canons may be inconsistent with textualism because they are focused on congressional intent and because the trigger for application is unclear, meaning that these canons cannot be applied consistently. The nominee has himself characterized the absurdity doctrine as an "off-ramp[ ] from the text" and suggested that courts should be wary of employing the canon in a way that allows them to "adopt what they conclude Congress meant rather than what Congress said ." Nonetheless, Judge Kavanaugh has cited the canon against absurd results to support his decision in multiple cases. And he has frequently employed the relatively new "elephants in mouseholes" canon.

Severability

Finally, in an issue that has prompted significant commentary on the nominee, Judge Kavanaugh has criticized the modern approach to severability, a doctrine that is closely related to statutory interpretation. When a court concludes that a particular statute violates the Constitution, it will generally declare that the statute is void and strike down the unconstitutional provision. If a law is only partially unconstitutional, a court sometimes has to decide which provisions to "sever and excise as inconsistent with" the Constitution. Courts generally attempt to retain as much of the statutory scheme as possible. Under some circumstances, however, the Supreme Court has recognized that "it is not possible to separate that which is unconstitutional . . . from that which is not." In such a case, the statutory provision is inseverable, and the court will strike the whole statute. This issue may arise when courts are considering the constitutionality of one provision within a larger, and more complicated, statutory scheme—such as the Patient Protection and Affordable Care Act (ACA).

To determine whether an unconstitutional provision is severable, courts consider whether Congress would have enacted the constitutional provisions independently of the unconstitutional portions, asking whether the remaining provisions are capable "of functioning independently." If "Congress has explicitly provided for severance by including a severability clause in the statute," this creates a strong presumption in favor of severability. Recently, Justice Thomas called for the Court to reconsider the modern severability inquiry, arguing that it "does not follow basic principles of statutory interpretation. Instead of requiring courts to determine what a statute means, the severability doctrine requires courts to make 'a nebulous inquiry into hypothetical congressional intent.'" Judge Kavanaugh has expressed similar concerns. He has described severability principles as a "mess" and questioned how a court can know what Congress would have wanted, characterizing this inquiry as an "inherently suspect exercise." The nominee suggested instead that "courts might institute a new default rule: sever an offending provision from the statute to the narrowest extent possible unless Congress has indicated otherwise in the text of the statute."

Judge Kavanaugh seemed to echo these concerns about the inquiry into congressional intent in his dissenting opinion in PHH Corp. v. CFPB . After concluding that the statutory provision providing the Director of the CFPB with for-cause protection for removal from office was unconstitutional, he asked whether the entire statute authorizing the CFPB must be struck down, or whether the for-cause removal protection was severable from the rest of the statute. The nominee described the usual severability inquiry requiring courts to "speculate" as to Congress's intent, but concluded that no such speculation was required in the case before the court because the relevant statute contained a severability clause providing that if any provision in the statute were found unconstitutional, "the remainder . . . shall not be affected thereby." In Judge Kavanaugh's view, this express statutory provision controlled. It remains to be seen whether other Supreme Court Justices agree with Justice Thomas and Judge Kavanaugh's concerns about the severability doctrine, and so it is unclear whether the nominee's appointment to the Court would create a majority willing to reconsider the doctrine. In any event, the nominee's writings suggest that he takes a narrow view of a court's role in striking down unconstitutional legislation, (1) favoring severing unconstitutional provisions and striking down as little as possible and (2) giving conclusive effect to statutory provisions expressly providing either for severability or for inseverability.

Administrative Law354

Administrative law is another critical area to consider when evaluating Judge Kavanaugh's judicial record, as the subject raises important questions about the scope of authority Congress has granted to federal agencies, as well as the Constitution's division of power among the three branches of government. While the jurist Judge Kavanaugh may replace, Justice Kennedy, was perhaps less influential in the area of administrative law than he was in other areas, he did often find himself as a decisive vote in important administrative law cases during the Roberts Court era. In the Supreme Court's most recent term, moreover, less than a week before announcing his retirement, Justice Kennedy authored an opinion in which he called for the Court to "reconsider" the doctrine of judicial deference to agency interpretations of their statutory authority under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. Because Justice Kennedy previously provided the fifth vote to defer to an agency's statutory interpretation under Chevron several times, this move signals to some that the Court may be on the verge of recrafting foundational administrative law doctrines, depending on who replaces the recently retired Justice.

Given this context, it is notable that Judge Kavanaugh has a fairly robust record on administrative law matters. This is unsurprising, considering the D.C. Circuit's location in the nation's capital coupled with the composition of its docket, which is composed of a substantial number of administrative law cases as compared to its sister circuits, as a result of various statutes vesting the court with (sometimes exclusive) jurisdiction to hear challenges to agency actions. The nominee has accordingly ruled in numerous cases posing administrative law questions, including some in which the sitting panel was divided. In such cases, he authored a considerable number of concurring and dissenting opinions that articulate his understanding of the disputed legal issue.

Perhaps most notably, Judge Kavanaugh wrote a number of separate opinions to explain his disagreement with other judges' views concerning the scope of a federal agency's statutory authority, reflecting a tendency to view agency attempts to expand their regulatory power with skepticism. In particular, echoing Justice Kennedy's recent concurrence, as well as similar opinions from other Justices, the nominee has signaled some discomfort with the Chevron framework, possibly indicating a willingness to cabin that doctrine to certain circumstances. To the extent his past opinions and scholarly work reflect how he would approach such matters if confirmed to the Supreme Court, he might be a vote to limit the circumstances in which courts defer under the Chevron doctrine to federal agencies. Before delving into the nominee's views on Chevron deference, however, this section first examines Judge Kavanaugh's writings on the threshold issue of when litigants may challenge agency actions in court. It then turns to the nominee's approach to agency interpretations of their statutory authority, including the Chevron framework, and concludes with an examination of the nominee's views with regard to discretionary and factual review of agency decisions.

Justiciability Issues

An important threshold issue in administrative law cases concerns whether an agency action is suitable for judicial review in a particular case. The nominee's views in this area contrast somewhat with that of one of his judicial heroes, Justice Scalia, who authored a number of opinions that interpreted Article III of the Constitution to prevent federal courts from hearing challenges to agency actions. In particular, Justice Scalia had relatively influential views on the constitutional requirements for individuals to establish standing to seek judicial relief from an Article III court, considering the standing doctrine to be an important limitation on the jurisdiction of federal courts and essential to preserving the broader principle of separation of powers. In contrast, while the nominee has certainly applied the Supreme Court's case law to dismiss a case on standing grounds, Judge Kavanaugh does not appear to take an especially restrictive view of standing under Article III, especially relative to his colleagues on the D.C. Circuit. In a number of cases that divided the D.C. Circuit, Judge Kavanaugh has departed from his colleagues to vote in favor of allowing individuals to challenge agency actions in court.

In particular, Judge Kavanaugh has often found that plaintiffs established standing to sue federal agencies under Article III, even when his colleagues ruled to dismiss the suit. For instance, in Morgan Drexen, Inc. v. CFPB , a corporation subject to a CFPB enforcement action and an attorney who contracted with that corporation by hiring it to perform paralegal services, brought suit in federal court challenging the agency's structure as unconstitutional. The D.C. Circuit majority panel ruled that the attorney did not have Article III standing to sue because she failed to establish an injury—an enforcement action against the corporation she contracts with was insufficient to satisfy this requirement. The nominee wrote a dissenting opinion, arguing that courts have "a tendency to make standing law more complicated than it needs to be." To Judge Kavanaugh, because the CFPB was regulating a business that the attorney engaged in through the corporation, she had established Article III standing and her suit should not have been dismissed.

Similarly, in Grocery Manufacturers Ass' n v. EPA , discussed in more detail below, the majority panel ultimately denied a food group's petition to review an EPA decision because it lacked prudential standing. The majority found the food group was not within the "zone of interests" protected by the relevant statute, although one judge on the panel noted he would also have held that the food group lacked Article III standing. In that case, the EPA issued a waiver with regard to ethanol use for entities that competed with the food groups in the market for the purchase of corn, the effect of which would increase the price of corn for the food group. Judge Kavanaugh dissented, arguing, among other things, that under the D.C. Circuit's "competitor standing cases," an entity does indeed have Article III standing to challenge agency regulations in situations where an agency regulates an entity's economic competitor in a manner that harms the entity's interests.

Likewise, in Ege v. Department of Homeland Security , a plaintiff brought suit seeking removal of his name from the government's No-Fly List. The majority panel found the plaintiff lacked Article III standing because, while the court had statutory jurisdiction over the Transportation Security Administration (TSA), it did not possess jurisdiction to issue an order binding on the Terrorist Screening Center, the entity with responsibility for removing names from the List. Judge Kavanaugh wrote separately, arguing that the plaintiff established Article III standing and had followed the appeals process mandated by Congress and properly petitioned the D.C. Circuit for review of the TSA's final order. The nominee observed that the TSA, the agency that actually controls access to planes, conceded it would comply with a court order directing it to allow the plaintiff on a plane. For Judge Kavanaugh, this was sufficient to establish standing under Article III.

Beyond constitutional standing issues, Judge Kavanaugh has written several opinions aiming to clarify what he considers the D.C. Circuit's muddled approach to prudential standing questions. For instance, as mentioned above, in Grocery Manufacturers Ass ' n v. EPA , the majority panel ultimately denied a food group's petition to review an EPA decision because it lacked prudential standing as it was not in the "zone of interests" protected by the relevant statute. In addition to his point concerning Article III standing, Judge Kavanaugh wrote separately to argue that the majority's conclusion that the zone of interests test is jurisdictional—meaning it concerns the power of a court to hear a case and requires the court to consider the issue even though the EPA did not raise it—was incorrect in light of recent Supreme Court decisions. According to the nominee, the zone of interests test simply asks whether a statute provides a cause of action to a party to bring suit. The following year, the Supreme Court in a unanimous decision favorably cited the nominee's opinion on this point.

Similarly, in White Stallion Energy Center v. EPA , also discussed in more detail below, the majority panel denied petitions challenging an EPA regulation that set emission standards for certain air pollutants emitted by electric steam generating units. With respect to one plaintiff, the majority panel found that, although the party established standing under Article III to bring its challenge in federal court, it nevertheless was not within the zone of interests protected by the Clean Air Act because it was challenging the EPA's failure to more stringently regulate its competitors. Judge Kavanaugh wrote separately to again note his concern with the D.C. Circuit's application of the "zone of interests" test, case law he described as "in a state of disorder" that "needs to be cleaned up." The nominee noted that under the Supreme Court's zone of interests test, there is a "presumption in favor of allowing suit . . . unless the [relevant] statute evinces discernible congressional intent to preclude review." Further, under Supreme Court precedent, plaintiffs challenging an agency's alleged failure to regulate sufficiently its competitors are "presumptively within the zone of interests under the APA . . . absent discernible evidence of contrary congressional intent." Despite the Supreme Court's permissive application of the zone of interests test, Judge Kavanaugh noted, the D.C. Circuit has sometimes required evidence of an intent to benefit the plaintiff class within the relevant statute in order to fall with its zone of interests, essentially applying a presumption against allowing suit. Further, the nominee asserted, the D.C. Circuit at times barred competitors from suing as they were outside of the relevant statute's zone of interest, but at others permitted such suits "without any apparent distinguishing principle." Judge Kavanaugh thus urged the court to reconsider carefully its "crabbed approach to the zone of interests test" and align its cases with Supreme Court precedent.

Statutory Review

Another critical area of administrative law to consider when evaluating Judge Kavanaugh is his approach to when a court must review an administrative agency's legal interpretations. Under the Administrative Procedure Act (APA), courts must set aside agency action that is "not in accordance with law" or that is "in excess of statutory jurisdiction, authority, or limitations." Pursuant to the Supreme Court's framework from Chevron , courts generally apply a two-step analysis when reviewing an agency's interpretation of a statute it administers. At step one, a court must generally determine whether Congress "has spoken to the precise question at issue." If so, courts must enforce the clear meaning of the statute, notwithstanding an agency's contrary interpretation. If a statute is silent or ambiguous on the matter, however, Chevron 's second step requires a court to defer to an agency's interpretation if it is reasonable. Under a related, but distinct doctrine, the Supreme Court's opinions in Auer v. Robbins and Bowles v. Seminole Rock & Sand Co . instruct courts generally to defer to an agency's interpretation of its own regulations as long as that reading is reasonable.

Applying Chevron. In his writings on and off the court, Judge Kavanaugh has questioned broader readings of both Chevron and Auer . In his non-judicial writings, the nominee has argued that the Chevron doctrine establishes improper incentives for federal agencies, encouraging regulators to push the boundaries of their statutory authority and take actions unless they are " clearly forbidden ." Further, the nominee has noted that the mechanics of applying the Chevron framework are imprecise. Chevron requires courts to enforce the clear meaning of a statute at step one, and only to move to step two when a statute is "ambiguous." To Judge Kavanaugh, however, the degree of clarity required in a statute to conclude that its terms are "clear" is uncertain, resulting in uneven application of this test by federal courts. For his part, Judge Kavanaugh has indicated that his threshold for finding ambiguity in a statute—thereby triggering deference under the Chevron framework—is likely higher compared to other judges.

While Judge Kavanaugh has written opinions that apply the Chevron doctrine and defer at its second step to agencies' reasonable interpretations of statutory ambiguity, his separate opinions often reflected his larger concerns about the Chevron framework. For example, when the Chevron doctrine applies to an agency's interpretation of a statutory provision, Judge Kavanaugh may be more likely than other judges to find clarity, rather than ambiguity, in a statutory provision. The nominee wrote separately, for example, when the majority found a statute ambiguous and eligible for Chevron 's second step, while Judge Kavanaugh found the statute's meaning clear and would resolve the case at Chevron 's first step.

For instance, in Northeast Hospital Corp. v. Sebelius , a panel of the D.C. Circuit examined whether the Medicare statute authorized certain patients to receive benefits under separate provisions of the law. The majority opinion first applied the Chevron doctrine and held that the law did not "clearly foreclose[]" the agency's interpretation as Congress had "left a statutory gap" that the agency was entrusted to fill. The court ultimately rejected the agency's position, however, because the agency improperly applied its interpretation retroactively. Judge Kavanaugh wrote a concurring opinion to express disagreement with the majority opinion's finding of ambiguity. The nominee concluded that the statute was sufficiently clear and the agency's interpretation contradicted the law. He observed that while the legal questions in the case were "embedded within a very complex legal scheme," the ultimate issue could be resolved by interpreting a specific provision of the law, not the entire Medicare statute. While it may take time and effort to determine the meaning of a statutory provision given a complex statutory backdrop, Judge Kavanaugh noted, that did not itself mean the statute was ambiguous. "What matters," he continued, "for the Chevron analysis is not how long it takes to climb the statutory mountain; what matters is whether the view is sufficiently clear at the top."

Ultimately, because of Judge Kavanaugh's apparent penchant for finding clarity in statutory terms, he is more likely to resolve a case at Chevron 's first step, rather than at step two. In other words, when reviewing a federal agency's interpretation of a statute it administers, to the extent that the nominee finds congressional intent clear in a statutory provision, he is more likely to independently analyze an agency's assertion of authority at Chevron 's first step, rather than find a statute ambiguous and potentially defer to an agency's reasonable interpretation at Chevron 's second step. In this vein, the nominee's methodology echoes the approach of a majority of the Supreme Court in Wisconsin Central Ltd. v. United States , a case last term where a five-Justice majority applied a more rigorous inquiry at Chevron's first step than the dissenters to find a statutory provision unambiguous.

Judge Kavanaugh's approach to such issues might also reflect agreement with an underlying tension commentators have observed with Chevron 's second step; namely, that a court's task at step two essentially elides any distinction between questions of law and questions of policy. In other words, according to this view, when a court defers under Chevron 's second step, it sometimes upholds an agency's legal interpretation of a statutory term, but at other times it is effectively affirming a reasonable policy choice made within the limits of congressionally delegated authority. Judge Kavanaugh arguably aims to distinguish more clearly between questions of law, on which courts should, in his view, retain interpretive authority, and policy, in which agencies exercise broader discretion to reach decisions according to their respective statutory delegations.

Major Questions Doctrine. Perhaps in an effort to urge more clarity and certainty in statutory review cases, Judge Kavanaugh has stressed that agencies need clear authorization from Congress to pass regulations with major economic and political significance, a concept the Supreme Court first enunciated in FDA v. Brown & Williamson Tobacco Corp. For example, as explained in more detail below, in Coalition for Responsible Regulation, Inc. v. EPA , the nominee dissented from a denial of rehearing en banc, arguing that the EPA had exceeded its statutory authority in promulgating certain regulations to curb global warming. Judge Kavanaugh explained that the agency was faced with two competing interpretations of its authority under the Clean Air Act, the broader of which would create absurd results given other requirements in the statute. But rather than choose the narrow, more plausible interpretation of its power, the EPA nevertheless adopted the broader reading of its authority—which would impose permitting requirements on a far larger number of entities—and simply, in the nominee's view, "re-wrote" via regulation those aspects of the statute that triggered implausible results. Judge Kavanaugh rejected this reading of the statute, remarking that such an approach "could significantly enhance the Executive Branch's power at the expense of Congress's." After noting several reasons why he thought the EPA's broad interpretation was not supported by the statute, the nominee observed that the EPA's proffered reading would significantly increase the number of entities subject to regulation, which, in turn, "will impose enormous costs on" businesses, homeowners, and the economy-at-large. Judge Kavanaugh argued that there was no indication that Congress intended such a "dramatic expansion" of the requirements of the statute, pointing to the Supreme Court's admonition in Brown & Williamson that when Congress intends to delegate authority to regulate matters with major "economic and political significance," it does so clearly.

Another case emblematic of this approach is Judge Kavanaugh's dissenting opinion in SeaWorld of Florida, LLC v. Perez . This case concerned a citation issued by the Secretary of Labor to SeaWorld of Florida, LLC (SeaWorld) for violating the Occupational Safety and Health Act's (OSHA's) "general duty" clause, which requires employers to provide employees with a workplace free of "recognized hazards" that may cause death or serious physical harm. SeaWorld violated the statute, according to the Secretary, when it exposed animal trainers who conducted performances with killer whales to recognized hazards of injury or drowning. The D.C Circuit panel majority denied a petition for review of the citation, concluding that the agency's decision was not arbitrary and capricious, and that it was supported by substantial evidence.

Judge Kavanaugh dissented, concluding that, under current law, the Department of Labor (DOL) was not authorized to regulate these activities. The nominee noted that the DOL is charged with ensuring that employers provide a reasonably safe workplace for their employees, and OSHA requires employers to provide employees with employment free from "recognized hazards" likely to cause death or physical harm. But, according to Judge Kavanaugh, the DOL had "not traditionally tried to stretch its general authority under the Act" to regulate the normal activities of participants in sports events or entertainment shows. Nonetheless, the nominee found, the Department here "departed from tradition and stormed headlong into a new regulatory arena." Judge Kavanaugh explained that, under a prior decision from the Occupational Safety and Health Review Commission that binds the Department, hazards intrinsic to an industry's normal activities are not subject to penalties under OSHA because the alternative interpretation would potentially eliminate industries that are by nature dangerous. The DOL thus lacked, in the nominee's view, the authority to "regulate the normal activities of participants in sports events or entertainment shows" such as SeaWorld. Moreover, as he did in Coalition for Responsible Regulation , Judge Kavanaugh pointed to the Supreme Court's admonition in Brown & Williamson that when Congress delegates authority to regulate substantial areas of economic and political significance, it does so clearly. Thus, the nominee concluded, when passing OSHA Congress was well aware of the dangers of various popular sports and entertainment shows, and "it is simply not plausible" that Congress intended to authorize implicitly the Department, through the vague terms of OSHA, to regulate the sports and entertainment industry, including by eliminating familiar practices in those industries.

Perhaps most prominently, Judge Kavanaugh returned to these considerations in a dissent from a denial of rehearing en banc in United States Telecom Ass ' n v. FCC , wherein he articulated a fairly stringent judicial framework for evaluating certain agency regulations that implicate so-called "major questions." This case concerned the FCC's net neutrality rule, which reclassified broadband Internet service providers (ISPs) as offering a telecommunications service, rather than an information service, thereby subjecting them to common carrier regulation under the Communications Act of 1934. The panel majority, applying Chevron , concluded the FCC's regulation was a reasonable interpretation of an ambiguous statute and thus upheld the rule at Chevron 's second step. Judge Kavanaugh, however, concluded that the agency lacked authority to issue the regulations. Drawing on various Supreme Court cases establishing what he referred to as the "major rules doctrine" (or "major questions doctrine"), including Brown & Williamson , he argued that when courts review agency rules, "two competing canons of statutory interpretation come into play." According to the nominee, on the one hand, the Chevron framework applies to "ordinary rules"; but, on the other, "Congress must clearly authorize" agencies to issue "major agency rules of great economic and political significance." If Congress only " ambiguously supplies authority for the major rule, the rule is unlawful." In other words, according to Judge Kavanaugh, while the Chevron doctrine permits agencies to issue ordinary rules based on statutory ambiguity, "the major rules doctrine prevents an agency from relying on statutory ambiguity to issue major rules."

While acknowledging that the Supreme Court had not established a bright-line rule distinguishing major rules from non-major ones, the FCC net neutrality rule, in Judge Kavanaugh's view, clearly qualified as a major rule for purposes of the major rules doctrine. The nominee based this conclusion on several factors that mirrored situations in which the Supreme Court previously found a rule to be "major": the agency was basing its authority on a "long-extant statute"; the net neutrality rule affected a vast number of companies and consumers by "fundamentally transform[ing] the Internet," taking its control away from the people and giving it to the government; and the financial impact of the rule was "staggering." Because Congress did not clearly authorize the FCC to promulgate the net neutrality rule, Judge Kavanaugh ultimately concluded it was invalid.

Judge Kavanaugh's approach to the major questions doctrine seems notable in at least two ways. First, at least relative to his colleagues on the D.C. Circuit, the nominee appears to have a lower threshold when considering whether regulatory actions constitute "major rules" that require clear congressional authorization. To the extent that the nominee takes an expansive view of what regulations fall into the "major rules doctrine" rubric, his approach would flatly deny application of the Chevron framework to a number of agency rules. Accordingly, if confirmed to the Supreme Court, Judge Kavanaugh might be a vote to further cabin the reach of the Chevron framework in certain circumstances.

Second, in those cases that do raise the question whether a major rule is supported by statutory authority, his encapsulation of a "major rules doctrine" appears to also apply a more stringent analysis of whether an agency is authorized to promulgate a rule than the Supreme Court has in some of the cases the nominee cites for establishing the doctrine. For instance, in King v. Burwell , the Court initially decided that, due to its importance, the issue of whether the ACA established tax credits for states with a federal health care exchange was ineligible for the Chevron framework, but continued by simply independently examining the statute without a presumption either way. As Judge Kavanaugh explained in United States Telecom Ass ' n , the approach in King might be appropriate in typical, non-major-questions cases where Chevron does not apply, as the court "simply determine[s] the better reading of [a] statute" in order to determine if an agency's regulation is authorized. However, under the nominee's approach to major questions, a court places a "thumb on the scale" that requires clear statutory authorization to support a regulation, meaning that not only does Chevron not apply in such cases, but that the agency has a heavy burden to demonstrate that its underlying action is lawful.

Auer Deference. Judge Kavanaugh's approach to the Chevron framework might also extend to other doctrines of deference to agency actions, such as Auer deference. In a 2016 speech, the nominee predicted that the dissenting opinion in Decker v. Northwest Environmental Defense Center , in which Justice Scalia objected to Auer deference because it violates separation of powers principles, will one day become the law. While Judge Kavanaugh does not appear to have made this argument in a judicial opinion, his approach to cases requiring review of an agency's interpretation of its own regulation appears somewhat analogous to his method in statutory review cases. In Howmet Corp. v. EPA , for instance, the D.C. Circuit panel's majority opinion upheld the EPA's interpretation of what constitutes "spent material" subject to its regulations, concluding that it was a reasonable interpretation of ambiguous language. Judge Kavanaugh wrote a dissenting opinion on the grounds that the EPA's proffered interpretation contradicted the text of its own regulation by expanding its reach. The nominee noted that agencies may not broadly interpret the scope of their own rules in order to "create de facto a new regulation." In Judge Kavanaugh's view, that was precisely what the EPA did, expanding the definition of "spent material" in order to "enlarge its regulatory authority" beyond the terms of the regulation. The nominee thus concluded that the regulations were clear and declined to defer to the agency.

Discretionary and Factual Review

In contrast to his views on Chevron and Auer deference, Judge Kavanaugh does not appear to have objections to the deferential approach applied by courts when conducting discretionary and factual review of agency decisions, another major area of administrative law under which courts will invalidate "agency actions, findings, and conclusions found to be arbitrary, capricious, [or] an abuse of discretion." The nominee appears comfortable with upholding an agency's reasonable policy choice made within the scope of its own statutory authority, although he has invalidated agency decisions that he considered to be arbitrary and capricious. For instance, in American Radio Relay League, Inc. v. FCC , the D.C. Circuit examined a rule issued by the FCC concerning the use of electric power lines for broadband Internet access. The majority panel voted to remand the rule for further explanation because the agency had not sufficiently explained why it chose not to change the "extrapolation factor" used to measure the interference caused by broadband over power lines. Judge Kavanaugh wrote separately to dissent from this aspect of the panel's ruling, concluding that the agency's rule should be upheld as it had sufficiently explained its reasoning. The nominee noted that the FCC's choice of an extrapolation factor was "a highly technical determination committed to the Commission's expertise and policy discretion," and the agency's explanation that the evidence was not sufficiently conclusive to merit a change was sufficient. Judge Kavanaugh also noted that lower courts have transformed the "narrow" scope of review that the Supreme Court has applied pursuant to the arbitrary and capricious test into a "far more demanding test," with "inherently unpredictable" results for federal agencies. He reiterated that while courts must carefully police the boundaries of an agency's statutory authority, when Congress has delegated policymaking discretion to an agency, courts are not permitted to substitute their own judgment for that of the agency.

Judge Kavanaugh has also written to signal disagreement with the judicial application of procedural requirements on federal agencies that are not expressly required by statute. In addition to remanding to the FCC to explain its reasoning regarding its rule concerning broadband access, the majority panel in American Radio also remanded the rule for the FCC to release redacted portions of internal staff studies relied on to issue the regulation. The nominee wrote separately to emphasize that, while the majority panel's decision was consistent with D.C. Circuit precedent—namely its 1973 decision in Portland Cement Ass ' n v. Ruckelshaus —that precedent was itself inconsistent with the text of the APA, which did not impose any such requirement on the rulemaking process. Further, Judge Kavanaugh noted that then-Justice Rehnquist's 1978 opinion for the Court in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. required invalidatation of the D.C. Circuit's imposition of additional procedural requirements on agencies beyond those found in the APA generally, ruling that the APA established the maximum procedures Congress required for agency rulemaking. The D.C. Circuit's precedent from Portland Cement , Judge Kavanaugh argued, was thus inconsistent with the text of the APA and Vermont Yankee .

Conclusion

Judge Kavanaugh's views on administrative law are a significant consideration for his nomination, as the Court may consider issues relating to Article III standing and deference to federal agencies under the Chevron and Auer frameworks in the near future. The nominee's scholarly writings and opinions in administrative law cases at the D.C. Circuit reveal several trends that may reflect how he would approach such matters if confirmed to the Supreme Court. The nominee has not articulated particularly stringent views on establishing standing under Article III to bring suit in federal court; likewise, Judge Kavanaugh appears comfortable with the relatively deferential review applied by courts when reviewing the discretionary decisions of an agency delegated to it by statute. At the same time, the nominee has voiced concern as to the deference accorded to agencies on questions of statutory and regulatory interpretation. Specifically, Judge Kavanaugh may be a vote to cabin the reach of Chevron deference by finding that regulations pose major questions; and even when applying the doctrine, Judge Kavanaugh may more frequently find clarity in statutory language, thus resolving disputes independently at Chevron 's first step, rather than deferring to reasonable agency interpretations at Chevron step two.

Business Law492

Judge Kavanaugh is likely to represent a key vote in the Supreme Court's business law cases. Last term, the Roberts Court issued a number of business-related decisions in which Justice Kennedy sided with bare majorities of the Court to conclude, for example, that arbitration agreements providing for the individualized resolution of disputes between employers and employees must be enforced; that federal antitrust law does not prohibit contractual provisions barring merchants from expressing a preference that customers use certain credit cards; and that foreign corporations may not be sued under the Alien Tort Statute (ATS). Decisions like these have prompted a debate among legal commentators as to whether the Roberts Court can be fairly described as overly "pro-business."

Regardless of one's assessment of the Roberts Court's approach to business issues, Judge Kavanaugh would have the opportunity to influence the Court's business law jurisprudence if confirmed. However, Judge Kavanaugh's views on a range of business law issues—including class action litigation, the reach of the Federal Arbitration Act, and federal preemption of state tort law —remain unclear, as the nominee has no significant writings on these issues as the D.C. Circuit confronts "relatively few explicit business cases."

Nonetheless, the nominee's rulings provide some clues as to how he might address business law issues if elevated to the Supreme Court. Many of Judge Kavanaugh's most important decisions, which are discussed in more detail elsewhere in this report, have had potentially significant implications for business regulation. In PHH Corp. v. CFPB , for example, the nominee dissented from a decision affirming the constitutionality of the CFPB's structure, reasoning that for-cause tenure protections for the CFPB's Director unconstitutionally infringed on the President's removal power in light of, among other things, the Director's "enormous power over American businesses, American consumers, and the overall U.S. economy." And in Doe v. Exxon Mobil Corp. , Judge Kavanaugh dissented in part from a D.C. Circuit decision concerning corporate liability under the ATS, concluding that certain ATS claims against a corporation for its overseas conduct should be dismissed because, among other reasons, the executive branch had "reasonably explained that adjudicating those ATS claims would harm U.S. foreign policy interests."

Whether these opinions reflect Judge Kavanaugh's approach to business-related cases more generally is open to debate, as they arguably reflect broader concerns about the separation of powers and national security, rather than any specific views of business regulation. However, the nominee's decisions concerning matters of substantive business law—specifically, antitrust law, labor law, and securities law—offer some insight into his views of certain federal statutes that regulate key aspects of the nation's economy. In these decisions, Judge Kavanaugh has expressed skepticism toward broad views of administrative power over business entities, evinced hesitance to find that federal statutes establish rights and remedies that are not textually explicit, and adopted a narrower view of federal antitrust law than some of his colleagues. This section of the report discusses how the nominee might approach business law cases by examining his prominent decisions concerning antitrust law, labor law, and securities law.

Antitrust Law

Among the cases the Supreme Court confronts, antitrust disputes are unique in affording economic analysis a central role in the Court's decisionmaking. As the Supreme Court has explained, "[i]n antitrust, the federal courts . . . act more as common-law courts than in other areas governed by federal statute," as judicial interpretations of general statutory terms "evolve to meet the dynamics of present economic conditions." A number of commentators have accordingly observed that the evolution of antitrust doctrine in the 20th century can be viewed largely as a story of the evolution of economic thought during that period. A judge's views on antitrust law can therefore offer insight into his broader approach to questions of federal economic regulation.

While the Court has over the past forty years interpreted the antitrust laws as being principally concerned with maximizing economic efficiency, some commentators have argued for a return to an era in which courts considered other goals in antitrust cases—including promoting consumer choice and product diversity, ensuring open markets in which new businesses have a reasonable opportunity for entry, and limiting the political power of large firms. Although Judge Kavanaugh has not been involved in a large number of antitrust cases, he has authored two critical opinions in the field that suggest he is unlikely to be receptive to these attempts to reorient the Court's antitrust jurisprudence toward an emphasis on social and political goals beyond the maximization of economic efficiency, measured through short-term effects on prices and output.

In United States v. Anthem, Inc. , for example, Judge Kavanaugh dissented from a panel majority opinion affirming a permanent injunction blocking the merger of Anthem and Cigna, two of the nation's four largest health insurers. In that case, the federal government, along with eleven states and the District of Columbia, sought to enjoin the Anthem-Cigna merger under Section 7 of the Clayton Act on the grounds that it would substantially lessen competition in the market for the sale of health insurance to "national accounts"—that is, employers purchasing health insurance for more than 5,000 employees across more than one state. The U.S. District Court for the District of Columbia agreed with the plaintiffs and permanently enjoined the merger after concluding that its overall effect on the relevant market would be anticompetitive in light of the market share that the merged firm would possess, and a three-judge panel of the D.C. Circuit affirmed. Judge Kavanaugh, however, dissented from the panel's decision, arguing that the merger would likely generate efficiencies that would benefit the companies' customers. Specifically, Judge Kavanaugh concluded that because the merged company would have greater bargaining power, it would be able to negotiate lower rates with healthcare providers (e.g., hospitals and doctors) and pass savings along to its customers.

In his dissent, Judge Kavanaugh sharply criticized a portion of the majority opinion suggesting that "it is not at all clear" that efficiencies likely to result from a merger "offer a viable legal defense to illegality under Section 7." While the D.C. Circuit majority ultimately assumed for purposes of the case that such efficiencies are relevant in assessing a merger's impact on competition, it also observed that the Supreme Court held in a 1967 decision that efficiencies are not relevant in Section 7 cases, and that the Court had neither explicitly nor implicitly overturned that decision. The nominee criticized this portion of the majority opinion as "ahistorical drive-by dicta," reasoning that in the 1970s, the Court "shifted away from the strict anti-merger approach [it] . . . had employed in the 1960s." Judge Kavanaugh concluded that under "the modern approach" to antitrust law reflected in subsequent Supreme Court decisions, courts "must take account of the efficiencies and consumer benefits that would result from [mergers]," and not limit their analysis to an assessment of how concentrated the relevant market would become as a result of a merger.

Judge Kavanaugh also expressed his preference for "the modern approach" to antitrust law over the approach taken by the 1960s Court in his dissent in F ederal Trade Commission (FTC) v. Whole Foods Market . In that case, the FTC sought a preliminary injunction to block the merger of Whole Foods and another grocery store chain, Wild Oats. The key issue in the case was the scope of the relevant "product market" in which Whole Foods and Wild Oats competed. The scope of the product market in which a firm competes is often a critical question in merger cases, because mergers are less likely to harm competition in markets with many competitors than in markets with few competitors. In Whole Foods Market , the FTC contended that the relevant market involved what it called "premium, natural, and organic supermarkets" (PNOS)—that is, supermarkets that focus on high-quality perishables and specialty organic produce, target affluent and well-educated customers, and emphasize social and environmental responsibility. Because Whole Foods and Wild Oats were the only PNOS in eighteen cities, the FTC contended that the merger violated Section 7 because it would substantially decrease competition in the PNOS market in those cities. By contrast, Whole Foods argued that because it competed with a wide range of non-PNOS grocery stores, the relevant market for purposes of Section 7 was far broader than PNOS. Whole Foods contended that because the merged company would not possess a large share of the relevant market (which included non-PNOS grocery stores), the merger would not substantially lessen competition in that broader market.

While the district court sided with Whole Foods and denied the FTC's motion for a preliminary injunction, the D.C. Circuit reversed that decision on appeal. Writing separately, Judge Janice Rogers Brown and Judge David S. Tatel both concluded that the district court erred. Relying in part on the Supreme Court's 1962 decision in Brown Shoe Co. v. United States , which identified seven non-exhaustive "practical indicia" to guide courts' market definition inquiry, Judge Brown concluded that the FTC had presented strong evidence showing that PNOS constituted a distinct "submarket" that catered to a "core group" of customers who would continue to shop at the merged firm over non-PNOS grocery stores even if the merged firm raised its prices. In an opinion concurring in the judgment, Judge Tatel likewise concluded that the district court erred by rejecting the FTC's evidence suggesting that PNOS constituted a distinct product market. The court accordingly remanded the case to the district court for a determination of whether the equities favored granting the FTC's motion for a preliminary injunction.

In his dissent, Judge Kavanaugh rejected his colleagues' market definition analysis, arguing that it "call[ed] to mind the bad old days when mergers were viewed with suspicion regardless of their economic benefits." Judge Kavanaugh reasoned that because the FTC had not presented evidence showing that Whole Foods was able to set higher prices in areas where Wild Oats stores were absent, the district court correctly concluded that Whole Foods competed with a range of non-PNOS grocery stores. Echoing his broader views on the importance of formal rules, the nominee also noted his "strong[ ]" disagreement with what he described as his colleagues' effort to "resuscitate[ ] the loose antitrust standards of Brown Shoe Co. v. United States ." According to Judge Kavanaugh, Brown Shoe 's malleable "practical indicia" approach to market definition "ha[d] not stood the test of time," and had been rightly abandoned in favor of more rigorous approaches that emphasize quantitative assessments of market concentration and price elasticities.

While the evidence is limited, Judge Kavanaugh's general approach to antitrust law appears to be broadly similar to the approach reflected in Justice Kennedy's prominent antitrust opinions. Justice Kennedy's tenure on the Court included several rulings limiting the scope of the antitrust laws based in part on insights from what has been called the "Chicago School" of antitrust analysis—an approach to antitrust that heavily emphasizes the use of economic reasoning, rejects reliance on values other than economic efficiency, and is generally confident that markets are efficient and self-correcting even in the absence of government interventions aimed at addressing anti-competitive behavior. Notably, Justice Kennedy's key antitrust decisions and Judge Kavanaugh's antitrust dissents all cite Judge Robert Bork's seminal book The Antitrust Paradox in support of their analyses. The Antitrust Paradox , which criticized the Supreme Court's broad interpretations of the antitrust laws in the 1960s and its reliance on non-efficiency values in many antitrust cases, was instrumental in the development of the Chicago School of antitrust analysis and has been described as the scholarly work that has exerted the "great[est] influence . . . on the direction of antitrust policy" since the adoption of the Sherman Act in 1890.

While the Chicago School's influence on antitrust law has recently attracted criticism from some commentators seeking to reinvigorate antitrust enforcement, Judge Kavanaugh's opinions suggest that, like Justice Kennedy, he is generally sympathetic to the School's core principles and likely to resist efforts to shift the Court's antitrust jurisprudence. Although the nominee may not alter the direction of the Court's antitrust decisions in light of this apparent similarity between his views and those of Justice Kennedy, his vote may be key in maintaining the Court's current balance in antitrust cases, the most recent of which divided the Court by a 5-4 margin.

Labor Law

Judge Kavanaugh has been involved in a number of cases involving labor law, another area in which some commentators have argued that the Roberts Court has evinced "pro-business" tendencies. While many of these cases have involved discrete legal issues that do not lend themselves to generalizations about the nominee's business law jurisprudence, two themes emerge from his labor law decisions. First, although Judge Kavanaugh has not disagreed with his D.C. Circuit colleagues on the legal standards governing the review of decisions rendered by labor arbitrators, he has applied those standards in a more deferential fashion than some of his colleagues. Second, perhaps reflecting his broader textualist approach to statutory interpretation, Judge Kavanaugh has been hesitant to find that federal labor and workplace safety statutes provide legal rights and remedies that are not textually explicit.

Under the NLRA, the National Labor Relations Board (NLRB) has the authority to review labor arbitration proceedings in cases where such review is necessary to determine whether an employer committed an "unfair labor practice." The NLRA affords the NLRB discretion over the extent to which it will defer to arbitration decisions, and the NLRB has adopted a standard pursuant to which it defers to such decisions as long as the arbitrator's decision is, in relevant part, not "clearly repugnant" to the NLRA. The NLRB has further explained that an arbitrator's decision is not "clearly repugnant" to the NLRA unless it is "palpably wrong, i.e., unless the arbitrator's decision is not susceptible to an interpretation consistent with the [NLRA]."

In Verizon New England Inc. v. NLRB , Judge Kavanaugh, writing for a divided court, applied these standards in reversing an NLRB order overturning an arbitration panel's decision. In that case, an arbitration panel determined that by waiving employees' rights to engage in "picketing" in its collective bargaining agreement with Verizon, a union had waived employees' rights to display pro-union signs in cars parked at Verizon facilities. The NLRB overturned the arbitration panel's decision, concluding that the union's waiver of the right to engage in "picketing" did not amount to waiver of the right to display pro-union signs in cars—a right protected by the NLRA in the absence of waiver. However, in an opinion by Judge Kavanaugh, the D.C. Circuit reversed the NLRB's decision. Over the dissent of Judge Sri Srinivasan, Judge Kavanaugh explained that under the deferential standard of review governing labor arbitration, the NLRB should have upheld the arbitrator's decision because it was not "palpably wrong." Specifically, Judge Kavanaugh reasoned that the arbitration panel's decision was not "palpably wrong" because "[n]o hard-and-fast definition of the term 'picketing' excludes the visible display of pro-union signs in employees' cars rather than in employees' hands, especially when the cars are lined up in the employer's parking lot and thus visible to passers-by in the same way as a picket line."

Judge Kavanaugh similarly deferred to a labor arbitrator's decision in National Postal Mail Handlers Union v. American Postal Workers Union . In that case, two unions of postal workers disputed which union was entitled to perform certain work at a U.S. Postal Service facility under a 1979 Postal Service directive. One union brought the matter to arbitration and prevailed, prompting the other union to sue in federal court to overturn the arbitrator's decision. Over the dissent of Chief Judge David B. Sentelle, the nominee affirmed the arbitrator's decision that the dispute was arbitrable, explaining that although the arbitrator had incorrectly interpreted a 1992 agreement between the unions and the Postal Service governing the arbitration of disputes, the court was bound by Supreme Court precedent to affirm his decision as long as he was "even arguably construing or applying the contract and acting within the scope of his authority." Because the arbitrator's interpretation of the 1992 agreement "was not outside traditional juridical and interpretive bounds," Judge Kavanaugh concluded that the arbitrator was indeed "arguably construing or applying the contract," even if his interpretation "may have been badly mistaken."

Judge Kavanaugh's labor law decisions also evince hesitance to find that federal labor and workplace safety statutes provide legal rights and remedies that are not textually explicit. For example, in International Union, Security, Police & Fire Professionals of America v. Faye , the nominee dissented from a D.C. Circuit decision holding that the Labor-Management Reporting and Disclosure Act (LMRDA) provides unions with an implied cause of action for breach of a fiduciary duty owed to them. In rejecting the court's conclusion that the LMRDA established such a cause of action, Judge Kavanaugh relied principally on the statute's text, which indicates that any "member" of a union may sue a union officer for breach of a fiduciary duty owed to their union. The nominee reasoned that because the statute by its terms created a cause of action only for union "members," it did not also contain an implied cause of action for unions themselves. Judge Kavanaugh rejected the argument that Congress intended to create an implied cause of action for unions in the LMRDA based on the Act's requirement that union members bring lawsuits only after their union refused or failed to do so, reasoning that this provision in the Act referred to a union's refusal or failure to bring lawsuits under state law and not the LMRDA.

Similarly, in SeaWorld of Florida v. Perez , a decision mentioned above in the discussion on administrative law, Judge Kavanaugh dissented from a decision affirming the DOL's citation of SeaWorld for violating OSHA by exposing animal trainers to the hazards of drowning or injury when working with killer whales during performances. The decision concerned the scope of OSHA's "General Duty Clause," which imposes a general duty on employers to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." In dissent, Judge Kavanaugh reasoned that the DOL lacked the authority under the General Duty Clause to issue the citation because (1) DOL precedent provided that the Department lacked the authority to proscribe or penalize dangerous activities intrinsic to an industry, and (2) SeaWorld determined that close contact between trainers and whales was an important aspect of its shows and thus intrinsic to its business. Judge Kavanaugh also criticized what he characterized as the Department's "irrational[ ] and arbitrar[y]" distinction between close contact among trainers and whales and contact in other forms of sport and entertainment, such as football and NASCAR races, which the Department had denied it had the authority to regulate. The nominee reasoned that, despite the Department's claim that it lacked the authority to regulate such activities, the majority's decision affirming the citation would permit the Department "to regulate sports and entertainment activities in a way that Congress could not conceivably have intended in 1970 when giving the agency general authority to ensure safer workplaces."

In the coming years, the Supreme Court is likely to confront a variety of important labor law cases. Given the close division evident in the Court's recent decisions in the field, it is likely that Judge Kavanaugh, if confirmed, would represent a critical vote in these cases. Whether the nominee's textualist approach to statutory interpretation or skepticism toward administrative authority would affect their ultimate disposition remains to be seen and would likely depend on the specific laws at issue in individual cases.

Securities Law

Federal securities law is another significant area of business regulation that Judge Kavanaugh would likely be called upon to address if elevated to the Supreme Court. The federal securities laws impose a variety of disclosure and anti-fraud requirements on issuers and sellers of securities in order to promote the accurate pricing of securities and the efficient allocation of capital. Enforcement of the securities laws raises a variety of important questions, including issues concerning the substantive reach of individual securities law provisions and procedural issues involving the authority of administrative agencies and the certification of securities class actions. The Roberts Court has confronted a range of securities law issues, many of which Judge Kavanaugh has not addressed on the D.C. Circuit. However, the Court has also issued a series of opinions concerning one topic on which Judge Kavanaugh has expressed clear views: the scope of anti-fraud liability under Section 10(b) of the Securities Exchange Act of 1934 (Exchange Act) and its corresponding rule.

Section 10(b) of the Exchange Act makes it unlawful "[t]o use or employ, in connection with the purchase or sale of any security . . . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [Securities and Exchange Commission (SEC)] may prescribe." SEC Rule 10b-5, which implements Section 10(b), in turn makes it unlawful to, "in connection with the purchase or sale of any security": (1) "employ any device, scheme, or artifice to defraud"; (2) "make any untrue statement of material fact or . . . omit to state a material fact necessary in order to make the statements made . . . not misleading"; or (3) "engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person."

In 1994, the Supreme Court held in a 5-4 opinion by Justice Kennedy that private plaintiffs cannot bring Section 10(b) claims against persons who aid and abet Section 10(b) violations but do not themselves personally engage in the conduct prohibited by Section 10(b). Justice Kennedy reasoned that because Section 10(b) by its terms prohibits "only the making of a material misstatement (or omission) or the commission of a manipulative act," private plaintiffs cannot sue those who merely aid and abet such conduct.

The Court expanded on this decision fourteen years later in Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc. , another Justice Kennedy opinion. In that case—which one commentator has described as "easily the most controversial of the Roberts Court's securities decisions" —the Court held by a 5-3 vote that a corporation's vendors and customers who had allegedly facilitated accounting fraud by preparing false documentation and backdated contracts for the corporation were not liable to the corporation's investors under Rule 10b-5 for participating in a "scheme to defraud." The Court reasoned that the corporation's vendors and customers were not liable because the corporation's investors relied only upon the corporation's financial statements, and not on conduct by these "secondary" actors.

Finally, in 2011, the Court held in Janus Capital Group v. First Derivative Traders by a 5-4 vote that an investment adviser who had helped an associated mutual fund prepare prospectuses containing false statements had not violated Rule 10b-5(b), which makes it unlawful to " make any untrue statement of material fact" in connection with the purchase or sale of a security. The Court concluded that the investment adviser had not violated Rule 10b-5(b) because it was not the "maker" of the relevant false statements. The Court explained that the "maker" of a statement within the meaning of Rule 10b-5(b) is "the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it," and that the investment adviser was not the "maker" of the statements because it did not have such authority.

Judge Kavanaugh's dissent in Lorenzo v. SEC offers insight into his views on the scope of "secondary" liability under the federal securities laws. Lorenzo involved an investment banker the SEC charged with sending email messages to investors containing misrepresentations about key features of a securities offering. The SEC found that the banker violated three separate anti-fraud provisions of the federal securities laws by sending the emails: (1) Section 17(a)(1) of the Securities Act of 1933 (Securities Act), which makes it unlawful "for any person in the offer or sale of any securities . . . to employ any device, scheme, or artifice to defraud"; (2) Section 10(b) of the Exchange Act; and (3) Rule 10b-5.

While a panel of the D.C. Circuit held that the banker was not the "maker" of the relevant statements and accordingly reversed the SEC's determination that he violated Rule 10b-5(b) based on Janus Capital Group , it affirmed the SEC's determination that the banker violated the other relevant anti-fraud provisions. The court rejected the banker's argument that he did not violate the remaining anti-fraud provisions because he was not the "maker" of the misleading statements, reasoning that the text of the remaining provisions did not require that a defendant "make" the misleading statements. Instead, the court concluded that the banker violated the remaining anti-fraud provisions by knowingly sending the misleading statements from his email account to prospective investors.

Judge Kavanaugh authored a pointed dissent from the court's decision, offering two independent disagreements with the majority's reasoning. First, the nominee disagreed with the majority's conclusion that substantial evidence supported the SEC's determination that the banker sent the emails with the requisite intent to deceive, manipulate, or defraud. Judge Kavanaugh argued that while the administrative law judge (ALJ) who initially adjudicated the case had concluded that the banker acted with the required mental state (i.e., mens rea), the ALJ's factual findings—that the banker had not read the emails, which his boss drafted—did not support the ALJ's legal conclusion. In a passage that arguably reflects his broader approaches toward both administrative law and criminal law, Judge Kavanaugh argued that in reviewing the ALJ's decision, the SEC had "[i]n a Houdini-like move, . . . rewrote the [ALJ's] factual findings to make [them] . . . correspond to the legal conclusion that [the banker] was guilty." Reasoning that the ALJ's legal conclusions did not heed "bedrock mens rea principles" that are "essential to preserving individual liberty," Judge Kavanaugh concluded that the court should have examined whether the ALJ's factual findings supported those conclusions, rather than deferring to the SEC's creation of "an alternative factual record."

Second, Judge Kavanaugh disagreed with the majority's conclusion that sending misstatements related to a sale of securities qualifies as a violation of the relevant anti-fraud provisions if the defendant was not a "maker" of the misstatements. The nominee argued that this interpretation of the anti-fraud provisions would allow the SEC "to evade the important statutory distinction between primary liability and secondary (aiding and abetting) liability," because it would imply that those who aid and abet a misstatement are themselves primary violators engaged in a scheme to defraud. Noting that the Supreme Court had "pushed back hard against the SEC's attempts to unilaterally rewrite the law" and expand the scope of primary anti-fraud liability in Central Bank of Denver , Stoneridge Investment Partners , and Janus Capital Group , Judge Kavanaugh rejected the conclusion that the banker was liable for participating in a fraudulent scheme by forwarding the misstatements after receiving them from his boss.

Judge Kavanaugh's Lorenzo dissent not only evinces a narrow view of the scope of secondary "scheme" liability under the anti-fraud provisions of the Securities Act and the Exchange Act—a view that seems to be consistent with that of Justice Kennedy—it also reflects skepticism concerning the legitimacy of judicial deference to SEC administrative adjudications. Notably, in June, the Supreme Court granted a petition for certiorari in Lorenzo on the question of "whether a misstatement claim that does not meet the elements set forth in Janus [ Capital Group ] can be repackaged and pursued as a fraudulent scheme claim." While Judge Kavanaugh's view may accordingly be vindicated, he would likely be disqualified from participating in the case if confirmed.

Conclusion

If confirmed, Judge Kavanaugh would likely have the opportunity to shape the Supreme Court's business-related decisions, as the Court has already granted certiorari to hear cases involving arbitration, products liability, federal preemption, class actions, and antitrust law during the October 2018 Term. While the nominee has not participated in cases involving the full range of business law issues that come before the Supreme Court, his decisions concerning antitrust law, labor law, and securities law offer some insight into his views on key aspects of federal economic regulation. Consistent with his general views on the separation of powers and statutory interpretation, Judge Kavanaugh has expressed skepticism toward broad views of the powers of administrative agencies to regulate businesses and evinced hesitance to find that federal statutes regulating economic activity establish rights and remedies that are not textually explicit. The nominee has also adopted a narrower view of federal merger regulation than some of his colleagues and, in the process, expressed a preference for modern approaches to antitrust law over the more flexible approach taken by the Court in the 1960s. Ultimately, this view of antitrust law, and Judge Kavanaugh's view of the scope of the anti-fraud provisions of the federal securities laws, suggest that the nominee's approach to business law matters may be quite similar to that of Justice Kennedy.

Civil Rights629

Justice Kennedy was a critical vote in civil rights cases involving matters including voting rights, affirmative action, housing and employment discrimination, and sexual orientation discrimination. While Judge Kavanaugh, if confirmed to succeed Justice Kennedy, could be influential in shaping the Court's civil rights jurisprudence, the nominee's fairly limited record with respect to civil rights law makes it difficult to assess how he might vote on a broad range of civil rights matters.

Judge Kavanaugh's approach to analyzing constitutional civil rights claims is particularly difficult to discern given his limited participation in cases involving equal protection challenges based on the Fifth or Fourteenth Amendments. For example, the nominee's only brush with the issue of affirmative action came in the form of a vote—without a written opinion—in favor of rehearing a panel decision that upheld an affirmative action program against a constitutional challenge raised by a non-minority plaintiff. The panel decision at issue rejected the plaintiff's arguments that a business development program denied him equal footing to compete with minority-owned businesses in violation of the Fifth Amendment. As noted above, however, a vote to rehear a case before the en banc court can be motivated by many factors beyond mere disagreement with the panel decision.

The nominee's most significant cases addressing civil rights matters have involved claims brought under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), and other employment discrimination statutes. Here, Judge Kavanaugh's record is still relatively limited, as the nominee has not addressed a number of issues that have divided the lower courts with respect to statutory civil rights law, such as whether and to what extent Title VII prohibits discrimination based on sexual orientation. Similarly, Judge Kavanaugh has written one decision, discussed below, assessing the legality of a voter identification law under the Voting Rights Act in a fact-intensive analysis that granted preclearance of that law on behalf of a unanimous three-judge panel. This section provides an overview of the limited civil rights cases that Judge Kavanaugh has adjudicated, beginning with statutory civil rights matters and concluding with his one voting rights case.

Statutory Civil Rights Law

With respect to statutory civil rights claims, a closer look at Judge Kavanaugh's authored opinions provides some noteworthy reference points. Of particular note are two concurrences in which he urged a legal position that would have altered circuit precedent with respect to certain Title VII racial discrimination claims, as well as several dissenting opinions involving federal employers that concerned a potential conflict between an antidiscrimination protection and another statute or countervailing interest, such as national security.

For example, in Ayissi-Etoh v. Fannie Mae , a Title VII case, Judge Kavanaugh concurred in the judgment in favor of the plaintiff, who had alleged, among other claims, a racially hostile work environment based on evidence that included the company's vice president allegedly shouting at the plaintiff "to get out of my office nigger." The panel issued a per curiam decision holding that the evidence, in its totality, was sufficient to establish the plaintiff's claims. The nominee wrote separately to "underscore an important point"—that the alleged statement by the vice president to the plaintiff " by itself would establish a hostile work environment for purposes of federal anti-discrimination laws." Judge Kavanaugh emphasized that a supervisor made this statement, and "[n]o other word in the English language so powerfully or instantly calls to mind our country's long and brutal struggle to overcome racism and discrimination against African-Americans." While other federal courts of appeals have held that similar evidence supports a racially hostile work environment claim, the nominee's position would notably go further than such precedent by expressly creating a clear rule that a supervisor's one-time use of a particular racial slur can, as a matter of law, establish the Title VII violation.

Judge Kavanaugh concurred in another Title VII race discrimination case, Ortiz-Diaz v. Department of Housing & Urban Development . At issue in Ortiz was whether the denial of a Latino employee's request for a lateral transfer was actionable under Title VII, where the denial was allegedly based on his race and national origin, but the transfer itself would have been to a position of the same pay and benefits. Ordinarily, such a transfer would not have constituted a Title VII violation under D.C. Circuit precedent because it did not effect a change in the terms, conditions, or privileges of the plaintiff's employment. In a reissued decision, however, the panel held that the transfer denial at issue could be a Title VII violation, as it would have removed the plaintiff from a race-biased supervisor, and offered potential career advancement. Thus, the panel concluded, the evidence created a triable issue that the transfer denial was based on the plaintiff's race. Concurring, Judge Kavanaugh stated that he was "comfortable with the narrowing of our precedents" so that some lateral transfers—rather than none—could be actionable under Title VII. Notably, he added that in a future case, the en banc court "should go further" by establishing that, as a rule, all discriminatory transfers and denials of transfers based on an employee's race "plainly constitute[ ]" discrimination in violation of Title VII. Here, as in Ortiz-Diaz , Judge Kavanaugh construed the protections afforded under Title VII more broadly than the interpretation taken by some other federal appellate courts.

While Judge Kavanaugh has construed Title VII in a manner that has been favorable to some claims raised by plaintiffs, he has also ruled against plaintiffs on occasion. In particular, in the context of certain antidiscrimination claims raised against federal employers, the nominee has differed—at times markedly so—from some of his colleagues in finding that certain legal doctrines or governmental interests bar antidiscrimination claims from proceeding. In Rattigan v. Holder ( Rattigan I ), for example, and a subsequent decision issued after the panel granted rehearing of the case ( Rattigan II ), Judge Kavanaugh filed dissenting opinions disagreeing with the majority's decision to allow a plaintiff's Title VII retaliation claim to proceed. In Rattigan I and II , the plaintiff, a Federal Bureau of Investigation (FBI) agent based in Saudi Arabia, alleged that his supervisor retaliated against him for filing a race and national origin discrimination complaint by referring him to the FBI's Security Division for possible investigation into whether his security clearance should be withdrawn. Central to the disposition of that case—and the basis for disagreement between the majority opinion and Judge Kavanaugh's dissents in Rattigan I and II —was how to interpret and apply the Supreme Court's 1988 decision in Department of Navy v. Egan to an allegedly retaliatory referral.

In Egan , the Supreme Court addressed the "narrow question" of whether the Merit Systems Protection Board (MSPB) had statutory authority to review the basis for a security clearance decision, the denial of which resulted in the plaintiff's termination from a laborer's job at a Navy facility. Holding that the MSPB lacked such authority, the Court in Egan discussed the statutory text relating to MSPB review and procedures, emphasizing: (1) the President's authority as Commander in Chief in matters of national security and foreign affairs; (2) the broad discretion committed to executive branch agencies to protect classified information and determine access to it; and (3) the lack of expertise agencies like the MSPB have in matters of national security to review a security clearance decision.

The majority in Rattigan I —in a matter of "first impression" —held that the FBI's decisionmaking process and clearance decision were not reviewable under Egan , but that the plaintiff's retaliation claim could nonetheless proceed because he challenged his supervisor's referral as retaliatory, not the clearance decision itself. Concluding that the plaintiff's retaliation claim could possibly be adjudicated without reviewing the agency's security clearance process, the panel instructed the district court on remand to determine whether the plaintiff had presented sufficient evidence for this claim to proceed "without running into Egan ." That application of Egan, the majority stated, "preserv[es] to the maximum extent possible Title VII's important protections against workplace discrimination and retaliation."

While the majority viewed Egan as a "narrow" ruling cabined to the nonreviewability of the substance of the security clearance process and clearance decision, Judge Kavanaugh interpreted Egan more broadly to preclude categorically a court's review of any such referrals. Reading Egan as "an insurmountable bar" to the claim, the nominee criticized the majority for "slicing and dicing" the security clearance process in order to sustain the plaintiff's Title VII claim. In Judge Kavanaugh's view, the President's issuance of executive orders requiring employees to report their doubts as to another employee's continued eligibility to access classified information provided a "powerful indication" that those referrals fell within Egan 's bar to reviewability. While the nominee noted that he "share[d] the majority's concern about deterring false or wrongful reports that in fact stem from a discriminatory motive," Judge Kavanaugh stated that "there are a host of sanctions that deter" behavior, such as that alleged by the plaintiff, citing Department of Justice (DOJ) regulations. In its subsequent panel decision in Rattigan II , the majority further narrowed the type of Title VII claims that could go forward in connection with a security referral to only claims alleging that the reporting individual knowingly made the referral based on false information. Judge Kavanaugh again dissented, stating that the majority's conclusion could not "be squared" with Egan because it would still allow courts to review security clearance decisions that, in his view, are unreviewable under that precedent.

In another dissent, Judge Kavanaugh took a similar approach when presented with the issue of whether privileges emanating from the Constitution's Speech or Debate Clause barred discrimination claims from proceeding against a congressional employer. In Howard v. Office of Chief Admin istrative Officer of the U.S. House of Representatives , a majority held that the Speech or Debate Clause did not require dismissal of the plaintiff's race discrimination claims brought pursuant to the Congressional Accountability Act because—based on the alleged facts specific to her claims—it was possible she could prove unlawful discrimination without necessarily inquiring into communications or legislative acts shielded by that Clause. The nominee, however, would have dismissed the claim as barred by the Clause, emphasizing the practical difficulty of challenging a congressional employer's personnel decisions without ultimately requiring it to produce evidence relating to legislative activities that the Clause protects from compelled disclosure. Describing the majority as "[t]rying to thread the needle and avoid dismissal" of the plaintiff's claims, Judge Kavanaugh stated that the majority's approach was "inconsistent with Speech or Debate Clause principles" and pointed to, as recourse for resolving allegations of discrimination, the availability of internal administrative procedures.

Meanwhile, in Miller v. Clinton , the nominee, in dissent, construed general language in the Basic Authorities Act authorizing the State Department to contract with American workers in foreign locations "without regard" to "statutory provisions" concerning the "performance of contracts and performance of work in the United States" to shield the agency from a federal antidiscrimination lawsuit. In Miller , though it was uncontested that the State Department had fired an employee solely based on age (65), the agency argued that language in the Basic Authorities Act exempted it from complying with the antidiscrimination requirements of the Age Discrimination in Employment Act with respect to the plaintiff. The majority opinion rejected that argument, concluding the statute contained no express exemption to the Age Discrimination in Employment Act's broad proscription against discrimination based on age, contrasting the Basic Authorities Act to other instances in which Congress expressly authorized mandatory retirement clauses. The majority also expressed concern that accepting the State Department's argument would require reading the Basic Authorities Act to create exemptions to Title VII and the ADA, emphasizing its skepticism that Congress "would have authorized the State Department to ignore statutory proscriptions against discrimination on the basis of age, disability, race, religion, or sex through the use of ambiguous language."

Judge Kavanaugh dissented, stating that as a matter of statutory interpretation, the case was "not a close call." The "plain language" of the Basic Authorities Act, as he viewed it, gave the State Department discretion to negotiate employment contracts without regard to statutes relating to the performance of work in the United States, and the Age Discrimination in Employment Act, in Judge Kavanaugh's view, was such a covered statute. Thus, he stated, "[t]he statute is not remotely ambiguous or difficult to apply in this case." In response to the majority's concern over the consequences that could result from exempting the State Department from the Age Discrimination in Employment Act and other workplace discrimination statutes, the nominee pointed to antidiscrimination protections provided for under the First and Fifth Amendments of the Constitution, calling the majority's concerns a "red herring" in light of those constitutional protections. Moreover, Judge Kavanaugh further declared that even if he agreed with the majority's concerns with respect to exempting the agency from the Age Discrimination in Employment Act, it was not for the court to "re-draw" the lines of the statute as it might prefer. Rather, he stated, "our job is to apply and enforce the law as it is written."

As a general matter, Judge Kavanaugh's positions in these statutory civil rights cases suggest that his decisions in this area of law are centrally animated by his broader judicial philosophy that embraces legal formalism, textualism and, in the case of claims involving federal employers, the separation of powers. For instance, the nominee appears to prefer the articulation and application of clear rules to govern his analyses of civil rights matters, such as those he urged in Ayissi-Etoh and Ortiz-Diaz (that would establish per se liability for race discrimination based on certain evidence) and Rattigan and Howard (that would bar certain discrimination claims altogether). Meanwhile, his dissents in Rattigan , Howard , and Miller could be read to indicate a reluctance to expose the executive or legislative branches to liability under antidiscrimination laws unless binding precedent or statutory language dictate otherwise. Nonetheless, as noted, the statutory civil rights cases in which the nominee has participated are relatively limited, making it difficult to arrive at firm conclusions as to how he might approach other civil rights matters that may arrive at the Court.

Voting Rights

In the voting rights context, Judge Kavanaugh, sitting by designation, authored one notable decision, South Carolina v. United States , on behalf of a unanimous three-judge panel of the U.S. District Court for the District of Columbia. South Carolina predated the Supreme Court's 2013 decision in Shelby County v. Holder , which invalidated Section 4(b) of the Voting Rights Act (VRA), a provision containing a coverage formula for determining which states were required to obtain "preclearance" of their proposed voting laws under Section 5 of the VRA —from the DOJ or a three-judge district court panel—before such laws could take effect. Though Shelby County rendered the VRA's Section 5 preclearance requirement inoperable, Section 5 was still in effect at the time of South Carolina .

At issue in South Carolina was whether that state's new voter identification (ID) law, Act R54, was valid under Section 5 of the VRA, which prohibits granting preclearance to state laws that either have the (1) "purpose" or the (2) "effect" of denying or abridging the right to vote on account of race. The DOJ previously denied prior approval of the South Carolina law, and the state sued to challenge that determination and seek a declaration that the law did not have the purpose or effect of denying or abridging the right to vote. Describing the VRA as "among the most significant and effective pieces of legislation in American history," Judge Kavanaugh, writing for a unanimous panel, ultimately granted preclearance of Act R54 for the election following 2012 under Section 5. The nominee's determination turned significantly on the facts of the case, a specific feature of the law at issue, and the deference he afforded to the state's reasons for and interpretation of the law.

Specifically, R54, which generally required a voter to provide photo ID in order to vote in person, consisted of, as Judge Kavanaugh explained it, "several important components." The first would have expanded the type of photo IDs that could be used to vote, while a second provision would have created a new type of photo voter ID card and DMV photo ID card that could be obtained for free. A third provision—critical to the disposition of the case—would have continued to allow voters to cast ballots without a photo ID, provided that the voter produce a non-photo voter registration card and, pursuant to the new law, complete an affidavit at the polling site stating the reason for not obtaining a photo ID. The DOJ denied preclearance in part because that affidavit requirement—mandating that the voter identify "a reasonable impediment" that prevented him or her from obtaining a photo ID—was ambiguous and unclear in its application.

Starting the analysis by evaluating the potential discriminatory effects of R54, Judge Kavanaugh focused on this "reasonable impediment" provision. The nominee explained that as the litigation unfolded, South Carolina officials responsible for interpreting and implementing the law began to solidify and provide more information—"often in real time"—as to how they would apply the provision. Those officials, the nominee stated, "have confirmed repeatedly" that they would accept any reason asserted by the voter on the reasonable impediment affidavit, including reasons such as having to work, lacking transportation to the county office, and being unemployed and looking for work. Judge Kavanaugh concluded that this official interpretation of the "reasonable impediment" provision was definitive, and he repeatedly emphasized that the state's expansive interpretation of the provision was central to the court's preclearance of the law. Indeed, the nominee noted the court may not have precleared South Carolina's proposed law without confirmation of the state's broad interpretation of the reasonable impediment provision because the law without it "could have discriminatory effects and impose material burdens on African-American voters, who in South Carolina disproportionately lack one of the R54-listed photo IDs" and "would have raised difficult questions under the strict effects test of Section 5." Judge Kavanaugh further advised that, if the state were to alter its interpretation of the reasonable impediment provision, it would have had to obtain preclearance of that change before applying it. The nominee thus concluded that R54 would not have discriminatory retrogressive effect within the meaning of Section 5 because, among other reasons, the state's broad interpretation of the "reasonable impediment" provision would mean that every voter who had a non-photo voter registration card under pre-existing law could still use that card to vote under the new law.

Separately, Judge Kavanaugh's opinion also concluded that the state did not have a discriminatory purpose in enacting R54. The nominee rejected the argument that the introduction of the law in proximity to the election of the country's first African-American President, among other evidence, was indicative of a discriminatory purpose. South Carolina justified the law on the grounds that it was necessary to deter voter fraud. Judge Kavanaugh concluded that such a purpose was legitimate and could not be deemed pretextual "merely because of an absence of recorded incidents of in-person voter fraud in South Carolina." Pointing to the Supreme Court's 2008 decision in Crawford v. Marion County Election Board , the nominee stated that the Court had "specifically recognized" deterring voter fraud and enhancing public confidence in elections as legitimate interests, deeming "those interests valid despite the fact that the 'record contain[ed] no evidence of any such fraud actually occurring in Indiana at any time in its history.'" In addition, though the state legislature "no doubt" was aware that photo ID possession rates varied by race in the state, Judge Kavanaugh noted that the legislators, faced with those data, "did not just plow ahead," but instead provided for the addition "of the sweeping reasonable impediment provision," among other changes. While ongoing legislative action with the knowledge of racially disproportionate impact could be evidence of a law's discriminatory purpose, such facts and circumstances, the nominee concluded, were not present in South Carolina .

In another section of the opinion, Judge Kavanaugh also compared the features of R54 to other state voter ID laws that had been recently upheld or invalidated, stating that "if those laws were to be placed on a spectrum of stringency, South Carolina's clearly would fall on the less stringent end." Two voter ID laws that had been precleared by the Justice Department—laws in Georgia and New Hampshire—were more restrictive than South Carolina's, in the nominee's view. Meanwhile, a Texas voter ID law, which had recently been denied preclearance by another three-judge panel, had "stringent" features distinguishable from the requirements of South Carolina's law. This comparison, Judge Kavanaugh stated, supported the panel's conclusion that R54 did not have discriminatory effects or purposes under Section 5.

Set against the backdrop of more recent legal challenges to voter laws—a legal area that continues to evolve following the Supreme Court's Shelby County decision —Judge Kavanaugh's opinion in South Carolina does not necessarily appear to be an outlier, nor a ruling in conflict with other courts that have adjudicated voter ID disputes. In one recent challenge to a voter ID law in North Carolina, for example, the Fourth Circuit invalidated that state's law under Section 2 (not Section 5) of the VRA and the Equal Protection Clause of the 14th Amendment. The panel concluded that the law was enacted with discriminatory intent based on evidence, including that the state legislature analyzed data on voting mechanisms disproportionately used by African-American voters and then selectively introduced provisions to eliminate or reduce those very mechanisms, thereby "target[ing] African Americans with almost surgical precision." Such legislative action was not presented in South Carolina . Meanwhile, in an ongoing legal challenge to a Wisconsin law requiring photo ID to vote, the Seventh Circuit stayed a district court's preliminary injunction that would have required the state to allow registered voters to cast a ballot with an affidavit that "reasonable effort would not produce a photo ID," and would have prohibited officials from disputing any reason provided by the voter, similar to the provision in South Carolina . That litigation, brought pursuant to Section 2 of the VRA and the Equal Protection Clause of the 14th Amendment, is ongoing.

Conclusion

The limited number of judicial opinions written by Judge Kavanaugh in the area of civil rights provides a correspondingly limited basis for drawing definitive conclusions about his judicial approach to these legal issues. South Carolina , the only voting rights decision in which the nominee participated, was itself a fact-bound determination that provides little insight into his judicial philosophy regarding voting rights cases generally. As discussed, the nominee's few opinions in statutory civil rights cases appears to be less of a product of his views on civil rights matters, and more a result of his general judicial philosophy. What is clear, nonetheless, is that Judge Kavanaugh, if confirmed, could be consequential in addressing civil rights questions that are likely to come before the Supreme Court on a range of areas in the foreseeable future. These include percolating and ongoing legal disputes relating to affirmative action in higher education and statutory civil rights protections based on sexual orientation or transgender status.

Criminal Law and Procedure741

Although Justice Kennedy may have exerted less influence over criminal law and procedure doctrine than other areas of the law, he did cast decisive votes in numerous criminal procedure cases. In particular, in cases implicating the Eighth Amendment's prohibition on cruel and unusual punishments, Justice Kennedy's voting record shaped much of recent Supreme Court doctrine. If confirmed, Judge Kavanaugh could therefore have a considerable impact on the Court's jurisprudence in this broad area of law. The nominee has written relatively little on criminal law and procedure, however, which makes it difficult to assess how he might influence the doctrine. The D.C. Circuit decides fewer criminal cases than other federal circuit courts. As a result, Judge Kavanaugh has written notable separate opinions on some areas of criminal law and procedure (e.g., Fourth Amendment search and seizure, the constitutional aspects of criminal sentencing, and substantive criminal law), but not others (e.g., cruel and unusual punishments under the Eighth Amendment, Fifth Amendment Miranda rights, and the Sixth Amendment right to counsel). Even on those issues that Judge Kavanaugh has addressed in multiple separate opinions—such as the Fourth Amendment—the record is too limited to support definitive conclusions about his judicial approach in such cases.

The limited set of Judge Kavanaugh's writings on criminal law and procedure that does exist, however, reveals discrete strains of strongly held views, rather than one overarching philosophy susceptible to summary as "pro-defendant" or "pro-government." On Fourth Amendment issues, he has espoused a circumscribed view of the constitutional protection against unreasonable searches and seizures—arguably more circumscribed than that of Justice Kennedy, who himself generally (but not always) favored the government position in search and seizure cases. On constitutional sentencing issues, by contrast, Judge Kavanaugh has shown skepticism of advisory sentencing schemes that make use of facts not encompassed by the offense of conviction to increase a defendant's advisory sentencing range. On substantive criminal law, he has strenuously voiced the opinion, also favorable to criminal defendants, that courts generally must read mental state requirements into criminal law statutes that do not establish such requirements expressly. Accordingly, this section addresses these various aspects of Judge Kavanaugh's criminal law jurisprudence.

Fourth Amendment

In his separate opinions on the Fourth Amendment, Judge Kavanaugh has generally taken a more restrictive view than most of his D.C. Circuit colleagues on the reach of the constitutional right to be free of unreasonable searches and seizures. In Klayman v. Obama , for instance, he concluded that the National Security Agency's (NSA's) metadata collection program under Section 215 of the USA Patriot Act was "entirely consistent with the Fourth Amendment." A majority of the D.C. Circuit appeared to agree that the program was constitutional: a three-judge panel decided without opinion to stay a preliminary injunction against the program, and no judge dissented from the denial of a petition for a rehearing en banc. But Judge Kavanaugh, in a brief opinion concurring in the denial of the en banc petition, which no other judge joined, concluded that the collection did not constitute a search under Supreme Court precedent and that the national security needs underlying the program rendered it reasonable in any event. Moreover, the opinion reached beyond the threshold search analysis that would have sufficed to uphold the metadata collection program to express the additional view that national security needs outweighed the privacy interests implicated by the program.

Judge Kavanaugh has authored other notable separate opinions on Fourth Amendment issues. He dissented from a panel decision in National Federation of Federal Employees -IAM v. Vilsack , holding that a U.S. Forest Service policy of conducting random drug testing on employees who worked with at-risk youth violated the Fourth Amendment. Judge Kavanaugh concluded that the drug testing program was "eminently sensible" and therefore reasonable under the Fourth Amendment even in the absence of individualized suspicion of drug use. In another case, Judge Kavanaugh wrote a dissent from an en banc opinion, concluding that during a Terry stop—an investigatory stop premised on reasonable suspicion of criminal activity but made without probable cause—police may manipulate or unzip the suspect's outer clothing to facilitate identification by a witness.

In at least two Fourth Amendment cases— Wesby v. District of Columbia and United States v. Jones —the Supreme Court ultimately adopted an analysis substantially similar to that set forth in dissenting opinions by Judge Kavanaugh. In Wesby , Judge Kavanaugh sharply criticized a panel decision that affirmed a $1 million false arrest judgment against D.C. police officers who had arrested partygoers for trespassing in a vacant house. Judge Kavanaugh concluded that the panel decision contravened Supreme Court doctrine barring such damages liability unless police officers are "plainly incompetent" and "knowingly violate" the law. In particular, Judge Kavanaugh criticized the panel for failing to appreciate that police officers often must base arrest decisions on "credibility assessments [made] on the spot, sometimes in difficult circumstances." The Supreme Court later reversed the panel decision, agreeing with Judge Kavanaugh's conclusions that the arrests were lawful and that, even if the arrests had not been lawful, the officers had not knowingly violated the partygoers' clearly established Fourth Amendment rights.

In Jones , Judge Kavanaugh's dissent from the denial of rehearing en banc endorsed the conclusion that the FBI's use of a GPS device without a warrant to track a suspect's vehicle for four weeks did not impinge upon the suspect's reasonable expectation of privacy. Specifically, Judge Kavanaugh joined a dissent by Chief Judge Sentelle that rejected the panel decision's aggregation or "mosaic" theory, pursuant to which a suspect may have a reasonable expectation of privacy in the totality of his public movements over a prolonged period even though he has no reasonable expectation of privacy in his location in public at any particular moment. Rejecting this theory, Chief Judge Sentelle (joined by Judge Kavanaugh and two other judges) concluded that "[t]he sum of an infinite number of zero-value parts is also zero." But Judge Kavanaugh, in his own dissent, also argued that the FBI's act of installing the GPS device on the suspect's vehicle without a warrant may have constituted an impermissible physical invasion of a constitutionally protected space and violated the Fourth Amendment for that reason. In other words, even though Judge Kavanaugh did not think that the warrantless GPS tracking violated the Fourth Amendment on a reasonable expectation of privacy theory, he suggested (without reaching a definitive conclusion) that the warrantless installation of the device may have violated the Fourth Amendment on a property-based theory of Fourth Amendment interpretation. A majority of the Supreme Court ultimately followed the latter analytical approach, holding that the attachment of the device to the vehicle was a Fourth Amendment search because the FBI physically intruded upon the suspect's private property (his car) for an investigative purpose.

Judge Kavanaugh's dissent in Jones may indicate that he, like Justice Kennedy and an apparent minority of other Justices, favors a predominately property-based approach to determining what constitutes a "search" under the Fourth Amendment. The distinction between such a property-based approach, on the one hand, and an approach that recognizes Fourth Amendment privacy interests even over materials in which an individual does not have property rights, on the other hand, may be significant to the Supreme Court's developing doctrine on law enforcement access to information generated by digital-age technologies.

In the 2018 case Carpenter v. United States , a five-Justice majority deviated from the property-based approach in holding that cell phone users have a reasonable expectation of privacy in the record of their physical movements contained in the historical cell phone location information maintained by their wireless carriers. The case broke new ground by holding that, at least in some circumstances, the Fourth Amendment protects sensitive information held by an individual's third-party service provider. Dissenting opinions by Justices Kennedy, Thomas, Alito, and Gorsuch all argued to varying degrees that cell phone users' lack of property interests in location information held by third parties undermined their assertion of Fourth Amendment interests in the information. Carpenter likely will generate substantial follow-on jurisprudence about its applicability to other types of sensitive information commonly held by third-party technology companies, such as IP addresses, browsing history, or biometric data.

Although Judge Kavanaugh's Jones dissent suggests that he may favor the minority approach toward Fourth Amendment rights as being largely coterminous with property interests—a view that, if it were to gain the support of a majority of Justices, would tend to limit Carpenter 's eventual reach—Judge Kavanaugh's Jones dissent was relatively brief and may well have been influenced by Supreme Court precedent as it existed in 2012.

In at least one instance, Judge Kavanaugh has made remarks off the bench that echo the more circumscribed view of Fourth Amendment protections that emerges from his jurisprudence. In a 2017 speech at the American Enterprise Institute that generally praised the jurisprudence of Chief Justice Rehnquist, Judge Kavanaugh noted Chief Justice Rehnquist's view that the Fourth Amendment exclusionary rule "was beyond the four corners of the Fourth Amendment's text and imposed tremendous costs on society." Judge Kavanaugh did not argue overtly for overruling the exclusionary rule, which he described as "firmly entrenched in American law." He nonetheless posited that Chief Justice Rehnquist successfully led the Supreme Court in "creat[ing] many needed exceptions to the exclusionary rule," including "most notabl[y]" the good faith exception to the exclusionary rule established in United States v. Leon . Judge Kavanaugh also highlighted a series of Rehnquist opinions that expanded the special needs doctrine, which allows some searches without probable cause or individualized suspicion if special needs "beyond the normal need for law enforcement . . . make the warrant and probable cause requirement impracticable." These points from the 2017 speech resonate in Judge Kavanaugh's Fourth Amendment opinions, where he has (1) argued that the NSA metadata collection program and the U.S. Forest Service randomized drug testing policy were permissible as special needs searches, and (2) rejected challenges to the permissibility of certain law enforcement activity.

Constitutional Issues in Criminal Sentencing

In sentencing cases, Judge Kavanaugh has suggested that he considers it unfair for a court to increase a defendant's advisory sentencing guidelines range based on acquitted conduct or conduct falling outside the elements of the offense of conviction. Nonetheless, Judge Kavanaugh has acknowledged that this sentencing practice does not violate the Fifth or Sixth Amendment under current Supreme Court precedent and that it would "require a significant revamp of criminal sentencing jurisprudence" to hold to the contrary. His opinions do not make clear how he would rule on the constitutional question in the absence of controlling Supreme Court case law. Some passages seem to suggest (but not clearly or uniformly) that he interprets the Sixth Amendment jury trial right to prohibit judicial determination of "key sentencing facts" even under sentencing guidelines that are advisory rather than mandatory in nature.

Judge Kavanaugh's opinions make clear that he disagrees with the consideration of acquitted or uncharged conduct at sentencing, and he has encouraged federal district judges to exercise their discretion in declining to rely on such conduct when imposing sentences. To the extent that Judge Kavanaugh would view the Constitution to require such a result, it would be in tension with how Justice Kennedy tended to view sentencing issues, as he generally voted with a minority of Justices who deferred to legislative judgments about proper sentencing considerations and rejected Sixth Amendment challenges to the use of judicial fact-finding to increase binding sentencing thresholds.

Other Criminal Procedure Issues

Judge Kavanaugh has authored few separate opinions or non-judicial publications about other major areas of constitutional criminal procedure, such as the warnings prior to custodial interrogations required under Miranda v. Arizona or the right to counsel under the Sixth Amendment. While he has not participated in any meaningful cases addressing custodial interrogations, in his 2017 speech to the American Enterprise Institute, Judge Kavanaugh praised Chief Justice Rehnquist for his opinions limiting Miranda 's application, suggesting that the nominee may take a restrictive view of that case. On the Sixth Amendment right to counsel, Judge Kavanaugh took a more expansive view of the rights of criminal defendants in what appears to be his only significant opinion on the subject. Specifically, in United States v. Nwoye , over the dissent of Judge Sentelle, he wrote a majority opinion holding that an attorney's failure to present expert testimony about Battered Woman Syndrome to support the duress defense of a criminal defendant who had been abused by her co-conspirator boyfriend was prejudicial to her case and supported her claim of ineffective assistance of counsel.

In the few opinions he has written in criminal cases concerning the right to due process, Judge Kavanaugh has sided with the government position and concluded that challenged procedures do not violate due process. For example, in dissent in United States v. Martinez-Cruz , he concluded that it does not violate due process to assign the defendant the burden of proof "when challenging the constitutionality of a prior conviction that is being used to enhance or determine the current sentence." Judge Kavanaugh criticized the panel majority, which held that the government must bear the burden in some circumstances to persuade the sentencing court that the prior conviction was valid, for "carv[ing] out novel exceptions to the minimum burden of proof baseline" under the Due Process Clause.

In two recent cases that produced divided panel decisions, Judge Kavanaugh authored opinions concluding that waivers of the right to appeal contained in guilty plea agreements were enforceable against criminal defendants despite flaws in the plea hearings. In rejecting the defendants' objections to enforcement of the appeal waivers, Judge Kavanaugh emphasized that such waivers play an important role in the efficient resolution of criminal cases. Justice Alito raised a somewhat similar point in a dissent last term (joined by Justices Kennedy and Thomas) in Class v. United States , where the majority held that a guilty plea does not "by itself bar[] a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal." Justice Alito criticized the majority for making a "muddle" of the doctrine on the appellate consequences of guilty pleas, calling it "critically important" to the proper functioning of the criminal justice system that those consequences be clearly understood.

Substantive Criminal Law

Judge Kavanaugh has argued in multiple separate opinions that courts must prevent unjust criminal punishment by interpreting criminal statutes to require high levels of proof of the defendant's mens rea (i.e., intent). Perhaps the most notable of these opinions came in an en banc case concerning the mens rea presumption, a canon of statutory interpretation pursuant to which criminal statutes that do not contain an express mental state requirement are interpreted to require purpose or knowledge for each offense element. In United States v. Burwell , the en banc majority upheld a district court determination that a defendant convicted of robbery was subject to a mandatory consecutive 30-year sentence for using an automatic weapon to commit a robbery, even though the government had not been required to prove that the defendant knew that the weapon was automatic. Judge Kavanaugh argued in a lengthy dissent that the majority should have applied the mens rea presumption to interpret the relevant statute (which did not contain an express mens rea element) to require the government to prove that the defendant knew the weapon was automatic. In another case, Judge Kavanaugh suggested in a concurring opinion that a conviction for making false statements to federal officials under 18 U.S.C. § 1001 should require "proof that the defendant knew his conduct was a crime," so as to mitigate the "risk of abuse and injustice" posed by prosecutions under the statute. Judge Kavanaugh's other opinions and publications have likewise stressed the "critical importance of accurate instructions to the jury on mens rea requirements."

Cruel and Unusual Punishments Under the Eighth Amendment

Judge Kavanaugh does not appear to have authored an opinion in an Eighth Amendment case during his time on the D.C. Circuit. Nominated to replace a Justice who often cast decisive votes in Eighth Amendment cases, Judge Kavanaugh's judicial record reveals little about his views regarding the scope of the constitutional ban on cruel and unusual punishments or his views on related issues like the death penalty or conditions of confinement. His 2017 speech to the American Enterprise Institute contains a brief discussion of the Supreme Court's case law regarding the constitutionality of capital punishment. That brief discussion can reasonably be interpreted as praising Chief Justice Rehnquist for taking the position that the Supreme Court overstepped its judicial function in the 1972 case Furman v. Georgia , which imposed a moratorium on capital punishment, and for his role in the jurisprudence that began upholding many revised capital punishment statutes four years later. The nominee suggested that Chief Justice Rehnquist's approach to death penalty cases aligned with the Supreme Court's "proper and limited role in the constitutional scheme." Questioning during the confirmation hearing may facilitate a better understanding of Judge Kavanaugh's views on Eighth Amendment issues.

Conclusion

If confirmed, Judge Kavanaugh would join the Supreme Court at a significant moment for the future of its criminal procedure jurisprudence. Aspects of the Court's criminal procedure doctrine appear to be in the midst of transformation, while other aspects face potential reconsideration. Carpenter v. United States , decided last term, could prove to be a watershed precedent in the extension of Fourth Amendment protections to sensitive information held by third-party technology companies, but the decision's reach will depend on how the Court applies it in future cases. Next term, the Court is poised to reconsider the long-standing "separate sovereign" exception to the Fifth Amendment Double Jeopardy Clause, pursuant to which a state prosecution does not bar a subsequent federal prosecution for the same offense (and vice versa). The Court will also hear important Eighth Amendment cases next term, including two cases that concern the extent to which the prohibition on cruel and unusual punishments limits the execution of prisoners with mental or physical disabilities. From Judge Kavanaugh's record in Fourth Amendment cases, it seems likely that his views align with those of an apparent minority of Justices on the current Court that generally resists expanding Fourth Amendment protections beyond the scope of recognized property interests. His record offers limited insight, however, into his approach to other major issues of criminal law and procedure.

Environmental Law814

Over the last decade the Supreme Court has been closely divided on various aspects of environmental law—that is, the broad range of laws that addresses human impacts on the natural environment. As was the case in other areas of law, the deciding vote in several important environmental law cases tended to be Justice Kennedy. As a consequence, Judge Kavanaugh, if elevated to the High Court to replace Justice Kennedy, could serve as a critical vote on such matters going forward.

During his tenure on the D.C. Circuit, Judge Kavanaugh has authored opinions and participated in dozens of environmental cases. His opinions have addressed a wide range of environmental issues including climate change, air quality, water quality, nuclear energy and waste, chemical bans, endangered species, migratory birds, and other issues arising under federal environmental statutes. The nominee's record on environmental law is relatively robust, as a large volume of the D.C. Circuit's docket tends to be environmental law cases, in part, because several major environmental statutes require challenges to certain types of agency actions to be brought exclusively in that court. Often, environmental cases address the scope of agency authority under an environmental statute or the legality of a specific agency action. Environmental law statutes and cases can also prompt broader questions of administrative law, such as standing to sue and standards for judicial review. Accordingly, this section begins by discussing Judge Kavanaugh's record on environmental justiciability issues, before addressing the nominee's views on substantive aspects of environmental law.

Standing to Sue in Environmental Cases

The outcome of an environmental case often depends on the court's resolution of threshold procedural issues, such as whether a plaintiff or petitioner has the right to bring a lawsuit in the first place. To proceed to the merits of a lawsuit, a plaintiff or petitioner will need to establish standing, a procedural threshold that has, at times, impeded environmental litigation. To establish standing under Article III of the Constitution, a plaintiff or petitioner must have suffered or will imminently suffer an injury-in-fact caused by the defendant or respondent and can be redressed by the court. Judge Kavanaugh has authored opinions in various cases that addressed whether a plaintiff or petitioner had the right to bring a lawsuit challenging an environmental regulation or federal agency action.

As noted in the discussion on his administrative law rulings, some of Judge Kavanaugh's opinions reflect a willingness to conclude that regulated entities such as business industry groups have standing to challenge environmental regulations based on alleged economic harm. For example, in 2012 case, Grocery Manufacturers Ass ' n v. EPA , Judge Kavanaugh dissented from the majority opinion that held that petroleum industry and food industry associations lacked standing to challenge the EPA's Clean Air Act waivers that allowed the sale of a specific corn-based ethanol biofuel because their claims of damages were too conjectural. In his dissent, Judge Kavanaugh argued that the food industry petitioners had standing to challenge the waiver because the demand for ethanol to produce the biofuel would increase prices for corn used in food products, demonstrating injury-in-fact and causation for Article III standing. Likewise, the petroleum industry petitioners had, in Judge Kavanaugh's view, standing because the waiver would cause its members to incur "considerable" economic costs to refine, sell, transport, or store the ethanol-based fuel.

Judge Kavanaugh expressed similar views on the extent that economic harm may support Article III standing in the 2015 case, Energy Future Coalition v. EPA . Judge Kavanaugh found that petitioners that produced ethanol biofuel had standing to challenge the EPA's regulation that allows only "commercially available" fuels to be used to test emissions of new vehicles. The petitioners argued that the EPA's actions to limit test fuels to only "commercially available" fuels effectively prohibited the use of E30, a fuel containing 30% ethanol. In claiming that the biofuel producers lacked standing, the EPA argued that the biofuel producers were not harmed because the test fuel regulation was directed at vehicle manufacturers and not biofuel producers. In rejecting the EPA's arguments, Judge Kavanaugh concluded in his opinion for the panel that the EPA's "direct regulatory impediment" prevented the petitioners' ethanol product from being used as test fuel, qualifying as an injury-in-fact to support their standing to challenge the EPA's regulation. The nominee also determined that the petitioners demonstrated causation and redressability because the EPA's regulation denied the petitioners "an opportunity to compete in the marketplace" and removing the "commercial available" requirement would allow their products to be used as a test fuel.

Among his opinions related to environmental law, Judge Kavanaugh has seldom addressed the standing of public interest or nongovernmental organizations (NGOs), an issue at the heart of several of the Supreme Court's environmental standing cases. Some commentators have argued that, in at least non-environmental contexts, Judge Kavanaugh imposes a high bar for public interest groups to show "harm" from a government action to satisfy standing requirements. Even assuming this observation to be correct, it is unclear, however, if this perceived trend is apparent in the context of environmental litigation. For example, in Natural Resources Defense Council v. EPA , Judge Kavanaugh concluded that the environmental NGO-petitioner had standing to challenge the EPA's adoption of an affirmative defense that would limit civil penalties in a suit alleging air pollutant emissions violations because its members would suffer harm from higher emissions that could be prevented or alleviated by a ruling to vacate the defense. Nonetheless, the limited number of cases on standing in the environmental context makes it difficult to discern any broad tendencies of Judge Kavanaugh on the subject.

Substantive Environmental Law

In cases involving substantive review of federal agency action, Judge Kavanaugh has expressed broad skepticism when an agency interprets an environmental statute that would enlarge the scope of its authority, most notably in the climate change context. Near the beginning of the nominee's tenure on the D.C. Circuit, the Supreme Court issued its 2007 decision, Massachusetts v. EPA , which held in a 5-4 ruling that the agency had the authority under the Clean Air Act to regulate greenhouse gas (GHG) emissions to address climate change. Subsequently, the EPA's GHG regulations were subject to various challenges in the D.C. Circuit where Judge Kavanaugh, most often in separate opinions, expressed his views on the scope of the EPA's authority to address climate change.

For example, in his dissent from the court's refusal to rehear en banc the 2012 decision in Coalition for Responsible Regulation v. EPA , Judge Kavanaugh argued that the EPA "exceeded its statutory authority" in regulating GHGs, including carbon dioxide (CO 2 ), under the Clean Air Act's Prevention of Significant Deterioration (PSD) permitting program. In Coalition for Responsible Regulation , the three-judge panel of the D.C. Circuit upheld the EPA's "tailoring" rule that raised and "tailored" the statutory emissions thresholds to avoid the "absurd result" of subjecting numerous smaller sources to the PSD permitting program for the first time because of their GHG emissions. However, Judge Kavanaugh in dissent interpreted the EPA's authority more narrowly, grounding his views on the doctrine of separation of powers. He reasoned that the EPA's "strange" and broad interpretation of the term "any air pollutant" to include GHGs was "legally impermissible" because a more narrow interpretation would have avoided the "absurd results" that necessitated the EPA's tailoring rule to raise the statutory emissions threshold. In Judge Kavanaugh's view, the EPA's interpretation of the Clean Air Act would "greatly" expand its authority and serve as precedent for other agencies to "adopt absurd or otherwise unreasonable interpretations of statutory provisions and then edit other statutory provisions to mitigate the unreasonableness." Judge Kavanaugh cautioned that "undue deference or abdication to an agency carries its own systemic costs. If a court mistakenly allows an agency's transgression of statutory limits, then we green-light a significant shift of power from the Legislative Branch to the Executive Branch." In going "well beyond what Congress authorized," the EPA's interpretation, in Judge Kavanaugh's opinion, threatened the "bedrock underpinnings of our system of separation of powers."

His dissent in Coalition for Responsible Regulation v. EPA was one of several cases where Judge Kavanaugh invoked separation-of-powers principles in reviewing the EPA's authority to regulate GHGs to address climate change. In these cases, he acknowledged that climate change is an "urgent," "important," and "pressing policy issue," but argued that the EPA must act within the statutory bounds set by Congress or judicial precedent in the agency's attempts to address climate change. For instance, the nominee issued a concurring opinion in a 2013 case, Center for Biological Diversity v. EPA , which vacated the EPA's rule postponing for three years the regulation of biogenic CO 2 sources—that is, sources whose emissions directly result from the combustion or decomposition of biologically based materials —from the Clean Air Act permitting programs. Judge Kavanaugh concurred that the rule should be vacated because the EPA lacked statutory authority to distinguish biogenic CO 2 from other forms of CO 2 for purposes of the Clean Air Act permitting programs even though the agency may have "very good [policy] reasons" to do so. Although the EPA's "task of dealing with global warming is urgent and important at the national and international level," Judge Kavanaugh cautioned that "[a]llowing an agency to substitute its own policy choices for Congress's policy choices in this manner would undermine core separation of powers principles." Bound by the earlier D.C. Circuit majority ruling in Coalition for Responsible Regulation , from which he had dissented, the nominee concluded that "EPA has no such statutory discretion here. Under the statute as this Court has interpreted it, the EPA must regulate carbon dioxide" under the Clean Air Act permitting programs and had no authority to delay regulating biogenic CO 2 .

In concurring with the majority to vacate the EPA's biogenic CO 2 deferral rule in Center for Biological Diversity , Judge Kavanaugh expressed his "mixed feelings" about this case because of the broader concerns he raised in his dissent in Coalition for Responsible Regulation —that is, that "contrary to this Circuit's precedent, [the Clean Air Act] does not cover [CO 2 ], whether biogenic or not." The Supreme Court in 2014 validated some of his concerns when it reviewed the earlier case. In Utility Air Regulatory Group v. EPA , a 5-4 opinion authored by Justice Scalia, the Court relied in part on Judge Kavanaugh's dissent to hold that the Clean Air Act did not authorize the EPA to require stationary sources to obtain Clean Air Act permits solely based on GHG emissions.

Judge Kavanaugh has also voiced concerns regarding the EPA's statutory authority to address climate change in more recent litigation. In 2016, Judge Kavanaugh sat on an en banc panel in the case challenging the Obama Administration's Clean Power Plan (CPP), which limits GHG emissions from existing power plants under the Clean Air Act. During the oral argument, Judge Kavanaugh suggested that the EPA overstepped its authority with a rule that is "fundamentally transforming an industry," stating that "[g]lobal warming isn't a blank check" for the President to regulate GHG emissions. While sympathizing with "the frustration with Congress" in addressing climate change, he emphasized that "under our system of separation of powers, . . . Congress is supposed to make the decision" and is best tasked to devise a "balanced" and "well-rounded" policy approach to regulate GHG emissions from power plants. The D.C. Circuit has not issued a decision in the CPP litigation because the court continues to hold the case in abeyance while the EPA proposes to repeal the CPP or issue a replacement rule.

Outside the climate change context, Judge Kavanaugh has likewise scrutinized federal agency efforts to interpret a statute that enlarges the scope of an agency's authority without clear congressional authorization. In EME Homer City Generation, L.P. v. EPA , Judge Kavanaugh wrote the majority decision in a 2012 case that challenged the EPA's rule requiring control of interstate transport of air pollution that impedes neighboring states from meeting air quality standards. Over the dissent of Judge Judith W. Rogers, Judge Kavanaugh's majority opinion concluded that the EPA's method to allocate emission reductions among upwind states that contribute to downwind air pollution had "transgressed statutory boundaries." He claimed it was "inconceivable" that Congress intended the EPA to "transform the narrow good neighbor provision into a 'broad and unusual authority'" under the Clean Air Act. He stressed that "'Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.'" In 2013, in Judge Kavanaugh's only majority decision to be reversed by the Supreme Court, Justice Ruth Bader Ginsburg, in a 6-2 ruling, held that Congress delegated authority to the EPA to fill the "gap left open" to determine how to allocate emission reduction requirements among neighboring upwind states. In comparing the case to Chevron U.S.A. Inc. v. National Resources Defense Council , the Court deferred to the EPA's allocation method as "reasonable," "permissible, workable, and equitable."

In his environmental cases challenging an agency's statutory interpretation, Judge Kavanaugh, in line with his textualist views, often determined that an agency's interpretation lacked support from the plain language of the statute. This approach obviated the need to address the extent to which judges should defer to an agency's interpretation of silent or ambiguous statutory language under the Chevron doctrine. As Judge Kavanaugh remarked in dissent in Sierra Club v. EPA , "the plain meaning of the text controls; courts should not strain to find ambiguity in clarity; courts must ensure that agencies comply with the plain statutory text and not bypass Chevron step 1."

This analytical approach was illustrated in his 2017 majority opinion in Mexichem Fluor, Inc. v. EPA . There, the D.C. Circuit vacated part of a rule that would have prohibited manufacturers from using hydrofluorocarbons (HFCs), a class of GHGs, as substitutes for ozone-depleting substances (ODSs) that are commonly used in refrigerators and air conditioners. In a 2-1 decision written by Judge Kavanaugh, the majority held that the EPA's "novel" interpretation of the Clean Air Act was "inconsistent" with the plain statutory text and exceeded its statutory authority because Congress did not intend for the EPA to regulate non-ODSs that contribute to climate change under a statutory provision with a "focus" on ODSs. Similar to previous opinions he authored on the EPA's authority to regulate GHGs under the Clean Air Act, Judge Kavanaugh reiterated that "Congress's failure to enact general climate change legislation does not authorize the EPA to act. Under the Constitution, congressional inaction does not license an agency to take matters into its own hands, even to solve a pressing policy issue such as climate change." He concluded that the EPA's "strained reading" of the statutory terms "contravenes the statute and thus fails at Chevron step 1. And even if we reach Chevron step 2, the EPA's interpretation is unreasonable."

The reasonableness of the EPA's statutory interpretation was the focus of several of Judge Kavanaugh's dissents to cases that challenged the agency's exclusion of cost considerations under the Clean Air Act. In 2014, he dissented in part from the majority ruling in White Stallion Energy Center v. EPA , which upheld the EPA's decision to not consider cost when determining whether it is "appropriate and necessary" to regulate mercury emissions from power plants under the Clean Air Act. In his dissent, Judge Kavanaugh argued that it was "unreasonable" for the EPA to exclude consideration of costs because "the key statutory term is 'appropriate'—the classic broad and all-encompassing term that naturally and traditionally includes consideration of all the relevant factors, health and safety benefits on the one hand and costs on the other." He explained:

whether one calls it an impermissible interpretation of the term 'appropriate' at Chevron step one, or an unreasonable interpretation or application of the term 'appropriate' at Chevron step two, or an unreasonable exercise of agency discretion under State Farm ,[ ] the key point is the same: It is entirely unreasonable for EPA to exclude consideration of costs in determining whether it is 'appropriate' to regulate electric utilities . . . .

On appeal, the Supreme Court in Michigan v. EPA reversed the D.C. Circuit's majority decision in a 5-4 opinion authored by Justice Scalia that quoted from Judge Kavanaugh's dissent. The Court held that the EPA's refusal to consider costs (including the cost of compliance) before deciding whether it was "appropriate and necessary" to regulate was unreasonable.

Similarly, in 2016, Judge Kavanaugh's dissent in Mingo Logan Coal Co. v. EPA criticized the agency for failing to account for cost and economic impacts in determining whether to revoke previously approved and permitted waste sites for mountain-surface mining operations. The EPA had revoked specific mining waste discharge sites that were approved four years prior in a Clean Water Act permit because new information led the EPA to conclude that the discharges would have an "unacceptable adverse effect" on water supplies and aquatic life. In dissent, Judge Kavanaugh argued that the EPA should have examined the cost of its actions because the term "unacceptable" was "capacious and necessarily encompasses consideration of costs. Like the word 'appropriate' at issue in Michigan v. EPA , the words 'acceptable' and 'unacceptable' are commonly understood to necessitate a balancing of costs and benefits." In criticizing the agency's "utterly one-sided analysis" of the "benefits to animals of revoking the permit," Judge Kavanaugh argued that the EPA failed to consider the costs to "humans—coal miners, [] shareholders, local businesses" resulting from revoking the previously approved and permitted discharge sites. Echoing his dissent in White Stallion Energy Center , he explained that "whether EPA's interpretation . . . is analyzed under Chevron step one or Chevron step two or State Farm , the conclusion is the same: In order to act reasonably, the EPA must consider costs before exercising its [Clean Water Act] authority to veto or revoke a permit."

In environmental cases reviewing agencies' interpretations of their own regulations, Judge Kavanaugh has broadly expressed skepticism regarding the extent to which judges should defer to agencies' interpretations of their own environmental regulations. For example, Judge Kavanaugh issued a dissent in 2010's Howmet Corp. v. EPA , which challenged the EPA's interpretation of its Resource Conservation and Recovery Act (RCRA) regulations that a particular chemical was "spent material" after it had been used in an industrial cleaning process and transported to be reused by a different company. The majority decision held that the regulation in question was ambiguous and deferred to the agency's interpretation that the "spent material" was subject to RCRA. Kavanaugh disagreed, arguing that "EPA's current interpretation is flatly inconsistent with the text of its 1985 regulations." He concluded that the EPA "enlarge[d] its regulatory authority" "by distorting the terms of the 1985 [RCRA] regulations" in "seeking to expand the definition of 'spent material'."

In reviewing Judge Kavanaugh's significant body of environmental jurisprudence, most commentators note that Judge Kavanaugh tends to narrowly construe an agency's authority or sharply question an agency's statutory interpretation as a means to preserve the separation of powers among the three branches of government. Some commentary has maintained that his judicial approach would limit federal agencies' ability to regulate activities that would negatively impact the environment. However, Judge Kavanaugh's scrutiny of agency's actions has led him to uphold agency actions or side with environmental groups when he feels Congress has granted the agency discretion to do so. For example, in 2-1 opinion in American Trucking Ass'ns , Inc. v. EPA , Judge Kavanaugh upheld the EPA's approval of California's rule limiting emissions from in-use non-road engines under the Clean Air Act's "expansive" statutory language. But overall, his general formalist approach toward separation-of-power issues and his commitment to textualism have often led him to limit an agency's authority to address environmental concerns.

Conclusion

Much of the debate over Judge Kavanaugh and environmental law is in the eye of the beholder. For example, some legal commentary has raised fears about what the nominee, if confirmed, may mean for environmental law, suggesting that the nominee would be skeptical of an agency's attempts to broaden its authority under existing environmental statutes to address new types of environmental concerns, such as climate change, that Congress may not have contemplated when the statutes were originally enacted. In contrast, other commentators have viewed the nominee's skepticism toward the authority of administrative agencies like the EPA as a blessing, arguing that Judge Kavanaugh, if confirmed, "will help reverse the trend" of "federal overreach" by "ensuring that all branches of our government act within their constitutionally assigned roles." Regardless of the merits of this debate, there are limits to any predictions that can be made regarding what the latest nomination to the High Court would mean for environmental law. After all, although his jurisprudence provides a robust picture of his environmental views, Judge Kavanaugh, during his tenure on the D.C. Circuit, has not addressed a number of issues in environmental law that could arise if he were elevated to the Supreme Court.

If confirmed, Judge Kavanaugh could soon consider several potentially important environmental cases, including an Endangered Species Act (ESA) case that is scheduled for oral argument before the Supreme Court on October 1, 2018. In Weyerhaeuser Co. v. U.S. Fish and Wildlife Service , the Court is to address, among other things, whether the ESA prohibits the government from designating private land as "unoccupied" critical habitat essential for the conservation of the endangered dusky gopher frog based solely on the multiple uninhabited breeding sites on the land. Judge Kavanaugh has previously addressed the designation of private lands as critical habitat for the endangered San Diego fairy shrimp in the 2011 case, Otay Mesa Prop., L.P. v. Department of the Interior . Private property owners challenged the Fish and Wildlife Service's (FWS's) designation of the plaintiffs' property as "occupied" critical habitat under the ESA based on observing four fairy shrimp in a tire rut on a dirt road on the plaintiffs' property. In his opinion for the panel, Judge Kavanaugh concluded that a single observation of a species with no subsequent observations of the species four years later did not provide sufficient evidence that the area was "occupied" habitat for the fairy shrimp. He explained that the "thin" record could not support FWS's designation, "even acknowledging the deference due to the agency's expertise." Although the Otay Mesa case concerned "occupied" habitat as opposed to the "unoccupied" habit at issue in Weyerhauser , Judge Kavanaugh's opinion suggests that he may view FWS's record with some skepticism. The Supreme Court's ruling in the Weyerhaeuser case could provide some key guidance and potential limits on FWS's authority to designate as critical habitat areas that are not actually occupied by the listed species.

Federalism909

The past twenty-five years have witnessed what some commentators have described as a "federalism revolution" in the Supreme Court's jurisprudence —a "revolution" in which Justice Kennedy was a key participant. This shift in the Court's federalism case law began with the Rehnquist Court, which issued a series of significant opinions resuscitating the Court's role in policing limitations on federal power. Specifically, the Rehnquist Court issued opinions (1) restricting the scope of Congress's powers under the Commerce Clause, (2) reviving the Tenth Amendment as a limit on Congress's authority, and (3) expanding the scope of state sovereign immunity.

This "federalism revolution" has not ended with the Roberts Court, which has extended a number of the Rehnquist Court's federalism decisions. The Roberts Court's 2012 decision in National Federation of Independent Businesses ( NFIB ) v. Sebelius , which involved a constitutional challenge to the ACA, was perhaps its most notable federalism case. While the NFIB Court ultimately concluded that the ACA's "individual mandate"—which required individuals to maintain a minimum level of health insurance or pay a penalty—was a permissible exercise of Congress's taxing power, a majority of the Justices concluded that the mandate exceeded the scope of Congress's Commerce Clause authority because it compelled individuals to engage in commerce rather than regulating pre-existing commercial activity. Perhaps more importantly, the NFIB Court extended the Rehnquist Court's Tenth Amendment cases—which held that Congress may not coerce state and local governments into implementing federal regulatory programs—to strike down a provision of the ACA that granted the Secretary of Health and Human Services (HHS) the authority to withhold all Medicaid payments from states that did not participate in an expansion of Medicaid, marking the first time the Court invalidated a condition attached to federal spending as unconstitutionally coercive. Justice Kennedy was a key participant in this "federalism revolution," authoring or joining nearly all of the Court's key decisions. Justice Kennedy's successor will accordingly play a critical role in shaping the Court's federalism jurisprudence.

Judge Kavanaugh's record on the D.C. Circuit contains limited information about his views on the various federalism issues that have confronted the Supreme Court. The nominee has not authored or joined any significant opinions concerning the Tenth Amendment or state sovereign immunity. Judge Kavanaugh's most prominent federalism case, Seven-Sky v. Holder , involved a pre- NFIB Commerce Clause challenge to the ACA. In that case, Judge Kavanaugh ultimately declined to consider the merits of the case after concluding that the court lacked jurisdiction to hear the dispute.

In Seven-Sky , plaintiffs brought a constitutional challenge to the ACA's individual mandate, arguing that the mandate exceeded the scope of Congress's authority under the Commerce Clause. A majority of a three-judge D.C. Circuit panel upheld the mandate, concluding that it did not exceed the scope of Congress's power under the Commerce Clause because it addressed a national problem that had "substantial effects" on interstate commerce. However, Judge Kavanaugh dissented from the court's decision, concluding that the court lacked jurisdiction to decide the merits of the challenge because of the Anti-Injunction Act, which denies courts jurisdiction over pre-enforcement lawsuits challenging "the assessment or collection of any tax." The nominee reasoned that although Congress had labeled the exaction imposed on individuals who failed to comply with the individual mandate a "penalty" and not a "tax," the Anti-Injunction Act nevertheless deprived the court of jurisdiction because the ACA provided for the penalty to be assessed and collected "in the same manner as taxes." The nominee concluded that, because the penalty could not be assessed and collected "in the same manner as taxes" unless the Anti-Injunction Act applied to the penalty in the same manner that it applied to "taxes," the Act deprived the court of jurisdiction over the plaintiffs' pre-enforcement lawsuit challenging the penalty, just as it would deprive the court of jurisdiction over a pre-enforcement lawsuit challenging a tax.

Although Judge Kavanaugh declined to take a position on whether the individual mandate was constitutional based on Congress's powers under the Commerce Clause, he noted in his dissent that the question was "extremely difficult and rife with significant and potentially unforeseen implications for the Nation and the Judiciary"—a consideration that he viewed as militating in favor of avoiding a "premature" decision on the issue. Judge Kavanaugh also argued that the importance of the constitutional questions presented by the case counseled in favor of proceeding cautiously. In developing this argument, he noted that the government's defense of the mandate as falling within Congress's Commerce Clause powers "carrie[d] broad implications" for the scope of those powers. Specifically, Judge Kavanaugh reasoned that under the government's view of the Commerce Clause, Congress could not only impose criminal penalties on individuals who failed to purchase health insurance, but also require that individuals purchase a range of other financial products, including retirement accounts, disaster insurance, and life insurance. While Judge Kavanaugh acknowledged that Congress's Commerce Clause authority may be effectively cabined by the political process, he concluded that such political checks did not "absolve the Judiciary of its duty to safeguard the constitutional structure and individual liberty" by policing the limits of federal power.

At the same time, Judge Kavanaugh argued that the court should be equally cautious about prematurely rejecting the government's defense of the mandate, noting that "[s]triking down a federal law as beyond Congress's Commerce Clause authority is a rare, extraordinary, and momentous act for a federal court." The nominee also reasoned that, because the individual mandate marked "a shift in how the Federal Government goes about furnishing a social safety net for those who are old, poor, sick, or disabled and need help"—specifically, by providing such benefits via privatized social services and a mandatory-purchase requirement rather than a traditional "tax-and-government-benefit" program—courts "should be very careful before interfering with the elected Branches' determination to update how the National Government provides such assistance." Finally, Judge Kavanaugh concluded that because Congress may respond to the constitutional challenges to the individual mandate by altering the ACA's language to provide that the mandate's penalty was in fact a "tax" (thus bringing the mandate within Congress's taxing power), or by eliminating the penalty altogether, the court should not strain to sidestep the Anti-Injunction Act and prematurely decide a difficult constitutional question.

Although Judge Kavanaugh declined to address squarely the merits of the Commerce Clause question presented in Seven-Sky , he delivered a speech in 2017 on Chief Justice Rehnquist's legacy that offers some clues about his general views on the Commerce Clause. In the speech, the nominee voiced general agreement with the Rehnquist Court's Commerce Clause decisions, outlining Chief Justice Rehnquist's reasoning in Lopez and Morrison and describing those cases as "critically important in putting the brakes on the Commerce Clause and in preventing Congress from assuming a general police power."

Accordingly, there is a limited record from which to gauge Judge Kavanaugh's views on federalism issues. Because the nominee has not adjudicated or commented on subjects like state sovereign immunity or the Tenth Amendment's limitations on Congress's authority, it is difficult to draw firm conclusions about his views on those topics. However, Judge Kavanaugh has indicated general agreement with the Commerce Clause decisions that served as the vanguard of the "federalism revolution" of the Rehnquist and Roberts Courts, and has expressed support for the position that the judiciary has an "important role" in policing the boundaries of federal authority.

Freedom of Religion941

If confirmed to the Supreme Court, Judge Kavanaugh could play a significant role in the Court's decisions concerning freedom of religion, an area of law encompassing the Constitution's Religion Clauses—the Free Exercise Clause and the Establishment Clause —as well as statutes like the Religious Freedom Restoration Act (RFRA). After all, Justice Kennedy, who the nominee may succeed, provided deciding votes and drafted the majority opinions in a number of significant cases concerning religious liberty. While serving on the D.C. Circuit, Judge Kavanaugh has authored or joined relatively few opinions on religious liberty. Nonetheless, three significant opinions he has written, along with his comments outside of the courtroom, suggest that Judge Kavanaugh's views on religious liberty are fairly similar to those of Justice Kennedy.

Establishment Clause

Judge Kavanaugh's writings on religious freedom issues have most frequently concerned the Establishment Clause. One significant threshold issue in Establishment Clause cases is whether the plaintiffs can show that they have standing to bring their suit. The concept of standing ensures that federal courts hear only cases that qualify as "cases" or "controversies" under Article III of the Constitution, by requiring plaintiffs to demonstrate "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief."

The Supreme Court, however, sometimes appears to treat standing differently in the context of the Establishment Clause, allowing certain suits to proceed even where the injury alleged would not suffice to create standing to raise other types of legal challenges. In recent years, the Court has narrowed the scope of one of the primary cases that seemed to carve out a special Establishment Clause exception to ordinary standing principles. However, the Court has not repudiated this older case law, and, more broadly, the Court has continued to hear Establishment Clause challenges to religious displays on government property and prayers at government-sponsored events, notwithstanding the fact that, as some have argued, the plaintiffs' injuries in these cases—viewing a display or listening to a prayer—seem akin to the type of "generalized grievance" that generally would not qualify as a constitutionally sufficient injury for purposes of standing.

Judge Kavanaugh has authored two significant opinions ruling on whether litigants have standing to raise Establishment Clause claims. First, the nominee rejected an Establishment Clause claim on standing grounds in In re Navy Chaplaincy . In that case, a group of Protestant Navy chaplains argued that the Navy had discriminated "in favor of Catholic chaplains in certain aspects of its retirement system." Writing the majority opinion, Judge Kavanaugh held that the plaintiffs lacked standing because they had not demonstrated an injury-in-fact, where "they themselves did not suffer employment discrimination on account of their religion." He rejected the claim—one that was accepted by Judge Rogers' dissent —that "being subjected to the 'message' of religious preference conveyed by the Navy's allegedly preferential retirement program for Catholic chaplains" created standing. In contrast to cases where the Supreme Court found that being subject to a religious message caused a cognizable injury—"the religious display and prayer cases"—in this case, the government was not "actively and directly communicating a religious message through religious words or religious symbols." In Judge Kavanaugh's view, "[w]hen plaintiffs are not themselves affected by a government action except through their abstract offense at the message allegedly conveyed by that action, they have not shown injury-in-fact to bring an Establishment Clause claim."

By contrast, in Newdow v. Roberts , Judge Kavanaugh concluded that a litigant had established standing under these religious display and prayer cases. The plaintiffs in Newdow argued that certain aspects of the presidential inaugural ceremony violated the Establishment Clause. Specifically, the plaintiffs challenged the prayers at the beginning of the ceremony and the use of the phrase "so help me God" in the presidential oath of office. A majority of the court rejected the suit on standing grounds.

Judge Kavanaugh concurred in the judgment of the court, contending that while the plaintiffs had standing, their claims failed on the merits. First, the nominee concluded that the plaintiffs' allegations that they would "witness . . . government-sponsored religious expression to which they object . . . suffice under the Supreme Court's precedents to demonstrate plaintiffs' concrete and particularized injury." He noted that in its cases involving "government-sponsored religious display[s] or speech[es]," the Court had not "expressly" addressed standing. "But," in his view, "the Supreme Court's consistent adjudication of religious display and speech cases over a span of decades suggests that the Court has thought it obvious that the plaintiffs in those matters had standing."

Judge Kavanaugh disagreed with the majority's analysis of the "causation and redressability elements of standing." In relevant part, the nominee noted that while it was "theoretically possible that Congress or the President could completely change the nature of the Inaugural ceremonies before the next Inauguration," that was, in his view, unlikely. For this point, Judge Kavanaugh cited Lee v. Weisman , a Supreme Court opinion written by Justice Kennedy that considered the constitutionality of prayers at a public school graduation ceremony. The Supreme Court concluded in Lee that the case presented "a live and justiciable controversy" because one of the plaintiffs was a high school student and it appeared "likely, if not certain, that an invocation and benediction will be conducted at her high school graduation." Judge Kavanaugh concluded that just as it was likely that "the high school's next graduation prayer likely would resemble past graduation prayers," so was it likely that the "next Inaugural ceremony likely will resemble past Inaugurals."

Because Judge Kavanaugh concluded that the plaintiffs had standing in Newdow , he went on to consider the merits of their claim, offering some insight into his substantive views on the Establishment Clause. Judge Kavanaugh paused at the outset to note the importance of the sincerely held beliefs on both sides of the issue, noting that the plaintiffs, "as atheists," "have no lesser rights or status as Americans or under the United States Constitution than Protestants, Jews, Mormons, Muslims, Hindus, Buddhists, Catholics, or members of any religious group." Nonetheless, the nominee stated that he would have held that the inaugural prayers and the use of the words "so help me God" in the presidential oath did not violate the Establishment Clause. Judge Kavanaugh noted that both the prayers and the oath were "deeply rooted" in "history and tradition." His analysis invoked the Supreme Court's decision in Marsh v. Chambers , which upheld a state legislature's practice of opening its sessions with a prayer after noting that such a practice "is deeply embedded in the history and tradition of this country." This emphasis on history and tradition would later be echoed in Justice Kennedy's opinion for the Court in Town of Greece v. Galloway , which similarly upheld prayers before a town's monthly board meetings.

While acknowledging that Supreme Court precedent prohibits public prayers that amount to proselytization, Judge Kavanaugh did not believe that these cases necessarily prohibited sectarian prayers, which he defined as "prayers associated only with particular faiths, or references to deities, persons, precepts, or words associated only with particular faiths." The nominee cited the following standard from the Tenth Circuit as "instructive": "the kind of [ ] prayer that will run afoul of the Constitution is one that proselytizes a particular religious tenet or belief, or that aggressively advocates a specific religious creed, or that derogates another religious faith or doctrine." Ultimately, he held that the inaugural prayers' "many references to God, Lord, and the like" "are considered non-sectarian for these purposes," and that the prayers' "limited" "sectarian references" did not impermissibly proselytize.

Judge Kavanaugh's opinion in Newdow took place against the backdrop of considerable legal debate that has occurred over the past half century regarding the meaning of the Establishment Clause. For example, the Establishment Clause is often characterized as establishing "a wall of separation between church and State" —although the appropriateness of this characterization has long been contested. The Supreme Court does not always embrace a separationist view of the Establishment Clause, as suggested by its cases approving of certain government-sponsored religious practices due to their historical pedigree. Justice Kennedy, for his part, warned that the Court's statements about government neutrality toward religion should "not give the impression of a formalism that does not exist." Instead, he argued that "[g]overnment policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage."

In his work off the court, Judge Kavanaugh has similarly questioned the "wall" metaphor, along with the related principle that the First Amendment "requires the state to be a neutral in its relations with groups of religious believers and non-believers." In a speech discussing the influence of Chief Justice Rehnquist, Judge Kavanaugh stated that the Chief Justice had "persuasively criticized the wall metaphor as 'based on bad history' and 'useless as a guide to judging.'" In another speech, the nominee praised as "well said" the following statement from former Attorney General Ed Meese: "[T]o have argued . . . that the [First Amendment] demands a strict neutrality between religion and irreligion would have struck the founding generation as bizarre. The purpose was to prohibit religious tyranny, not to undermine religion generally." Judge Kavanaugh's writings on and off the bench thus suggest that he, like Justice Kennedy, while not wholly unsympathetic to those who raise challenges under the Establishment Clause, would largely oppose a strict separationist view of the Clause.

Free Exercise Clause and RFRA

Judge Kavanaugh has not authored any notable opinions on the Free Exercise Clause, but he did write a significant dissenting opinion on RFRA: Priests for Life v. HHS . As background, RFRA provides that the federal government may not "substantially burden a person's exercise of religion" unless it demonstrates that its action "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering that compelling governmental interest." RFRA has become central to a number of controversies involving the ACA, most notably the Supreme Court's decision in Burwell v. Hobby Lobby Stores . In that case, three closely held corporations challenged the ACA's requirement that they provide their employees with health insurance covering certain contraceptive methods. The Supreme Court concluded that the mandate, as applied to these closely held corporations, violated RFRA. The Court explained that these companies "sincerely believe[d] that providing the insurance coverage demanded" was immoral because it had the "effect of enabling or facilitating the commission of an immoral act by another," and it was not for the Court "to say that their religious beliefs are mistaken or insubstantial." Because the regulatory scheme imposed "an enormous" penalty if the corporations chose not to comply with the contraceptive mandate, the Court held that it imposed a substantial burden on their beliefs. The Court further concluded that, assuming the government had demonstrated a compelling interest, the government had not shown that the mandate was the least restrictive means of achieving that interest.

Following Hobby Lobby , in Priests for Life , a group of nonprofit organizations that were opposed on religious grounds to providing their employees with certain types of contraceptives again challenged the ACA's contraceptive requirement. The regulatory scheme allowed religious nonprofit organizations to opt out of this requirement by submitting certain documents to insurers to exclude contraception from the health insurance coverage they provided. Under this scheme, if employers opted out, insurers were required "to offer separate coverage for contraceptive services directly to insured women." The plaintiffs argued that the opt-out procedure itself burdened their religious beliefs by triggering the substitution of alternative coverage that would provide contraceptives, thus "facilitating contraceptive coverage." A three-judge panel of the D.C. Circuit rejected the plaintiffs' RFRA claim, concluding that the opt-out requirements did not impose a substantial burden on the challengers' religious exercise.

The plaintiffs sought en banc review of this decision, but the D.C. Circuit rejected their petition. In a dissent from the denial of the petition, Judge Kavanaugh opined that the plaintiffs "should ultimately prevail on their RFRA claim, but not to the full extent that they seek." First, the nominee concluded that the plaintiffs demonstrated a substantial burden: "When the Government forces someone to take an action contrary to his or her sincere religious belief (here, submitting the form) or else suffer a financial penalty (which here is huge), the Government has substantially burdened the individual's exercise of religion." In finding a substantial burden, Judge Kavanaugh relied heavily on Hobby Lobby . He accepted the plaintiffs' view that the opt-out procedure "makes them complicit in facilitating contraception or abortion," burdening their religious beliefs. In his view, it was not the court's "call to make," because in Hobby Lobby , the Supreme Court established that "judges in RFRA cases may question only the sincerity of a plaintiff's religious belief, not the correctness or reasonableness of that religious belief."

Judge Kavanaugh next concluded that the various opinions in Hobby Lobby "strongly suggest[] that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations." Although the majority opinion in Hobby Lobby avoided the issue, the nominee noted that Justice Kennedy and the four dissenting Justices had suggested that the government's interest was compelling—and he said that this conclusion was "not difficult to comprehend," noting the "significant social and economic costs" that result from unintended pregnancies. Finally, the nominee decided that the opt-out requirements violated RFRA because they were not "the Government's least restrictive means of furthering its interest in facilitating access to contraception for the organizations' employees." But this last conclusion was based on the fact that the government could require the organizations to submit a different, "less restrictive notice" that prior Supreme Court cases suggested "should be good enough to satisfy the Government's interest." In this vein, this aspect of Judge Kavanaugh's Priests for Life dissent largely mirrored Justice Kennedy's approach in Hobby Lobby.

The plaintiffs in Priest for Life sought review in the Supreme Court. The Court granted their petition for certiorari, consolidating it with similar cases from other federal courts of appeal under the caption Zubik v. Burwell , but ultimately vacated the opinion of the D.C. Circuit without reaching the merits of the claim. After oral argument, the Court "requested supplemental briefing from the parties addressing 'whether contraceptive coverage could be provided to petitioners' employees, through petitioners' insurance companies, without any such notice from petitioners.'" Both parties "confirm[ed] that such an option [was] feasible," and the Court remanded the combined cases to the lower courts to afford the parties "an opportunity to arrive at an approach going forward that accommodates" the positions of both sides. Some commentators speculated that the Court, which was then "functioning with eight Justices, was having difficulty composing a majority in support of a definite decision on the legal questions." Zubik may suggest, therefore, that the Court is closely divided with respect to religious liberty issues, demonstrating that a new Justice could be influential on these matters as the Court considers whether to hear other cases on religious liberty in the near future.

Freedom of Speech1026

First Amendment cases, particularly those involving the freedom of speech, have featured prominently on the Roberts Court. In recent years, a majority of the Court has looked with increasing skepticism on laws or government actions that restrict political speech or commercial speech, compel speech either directly or through mandatory subsidization of private speech, or regulate speech based on its content. Justice Kennedy played a pivotal role in many of these cases, including by authoring the Court's 2010 opinion in Citizens United v. F ederal E lection C ommission ( FEC ), which invalidated a federal ban on certain corporate political expenditures. In addition, in his last term, Justice Kennedy joined five-member majorities to invalidate compulsory public-sector union agency fees and hold that a state's disclosure requirements for certain pregnancy centers were likely unconstitutional. However, he has also recognized limitations on the First Amendment's reach, particularly in the context of a government employee's speech on an employment matter.

For his part, Judge Kavanaugh has a relatively robust free speech record, having encountered several strands of First Amendment law as an appellate judge, and his opinions in these cases provide some limited insight into how he might approach free speech cases on the Court. Some of Judge Kavanaugh's cases required him to decide whether the reasoning undergirding a key First Amendment precedent applied to a new factual scenario. In other cases, Judge Kavanaugh offered alternative analytical frameworks to tackle First Amendment issues confronting lower courts, including on evolving areas of First Amendment law such as commercial speech regulations. This section of the report addresses Judge Kavanaugh's freedom-of-speech jurisprudence, beginning with his decisions on campaign finance law before turning to his opinions on the regulation of various types of media and commercial speech. The section concludes by noting where the nominee has recognized key limitations on the First Amendment's reach.

Political Speech, Political Spending, and Speaker-Based Distinctions

As a circuit court judge, Judge Kavanaugh has witnessed the evolution of the Supreme Court's campaign finance jurisprudence and has applied several of its key decisions in this area in cases concerning political spending. Although these cases largely involved the application of binding Supreme Court precedent, some required the judge to reconcile what he viewed as potential incongruities in the law or to consider how the underlying First Amendment principles squared with the federal government's interests in preserving the integrity of the democratic process. Perhaps most notably, Judge Kavanaugh has openly endorsed the view—consistent with long-established Supreme Court precedent —that political spending represents speech and that limits on such speech deserve strict scrutiny under the First Amendment. During a 2016 event at the American Enterprise Institute, Judge Kavanaugh remarked that "political speech is at the core of the First Amendment, and to make your voice heard, you need to raise money to be able to communicate to others in any kind of effective way."

The first notable case on political speech for which Judge Kavanaugh authored an opinion arose in 2009 in Emily ' s List v. FEC . That case, which preceded Citizen ' s United , was brought by a nonprofit group seeking to make both contributions to and expenditures in support of "pro-choice Democratic women candidates," and involved a First Amendment challenge to FEC regulations that required "covered non-profits [to] pay for a large percentage of election-related activities out of their hard-money accounts," which were "capped at $5000 annually for individual contributors." Judge Kavanaugh authored the panel opinion in the case. He began by reviewing "several overarching principles of relevance" from the Supreme Court's First Amendment cases involving campaign finance laws: (1) that campaign contributions and expenditures are "speech" within the meaning of the First Amendment; (2) that "equalization"—or restricting the speech of some speakers "so that others might have an equal voice or influence in the electoral process"—is not a permissible basis for the government to restrict speech; (3) that the government has a strong interest in combating corruption and the appearance of corruption; (4) that based on that anti-corruption interest, the Court has allowed greater regulation of contributions to candidates or political parties than of expenditures by citizens and groups on electioneering activities such as advertisements, get-out-the-vote efforts, and voter registration drives; and (5) that the Court—at least up until that point—had been "somewhat more tolerant of regulation of for-profit corporations and labor unions."

Judge Kavanaugh analyzed the applicability of these First Amendment principles and holdings to EMILY's List, which sought to make both contributions and expenditures . He held that although limits on a nonprofit's direct contributions to federal candidates and parties are constitutional under relevant Supreme Court precedent, limits on their expenditures are not. In other words, Judge Kavanaugh concluded, nonprofits "are entitled to make their expenditures . . . out of a soft-money or general treasury account that is not subject to source and amount limits." In so doing, the nominee distinguished the Supreme Court's decision in McConnell v. FEC , which had upheld statutory limits on soft-money contributions to and expenditures by political parties , reasoning that the anti-corruption justification for those limits did not apply in the case of nonprofits. He explained that if the different treatment under the First Amendment of political parties and nonprofits seemed "incongruous," it was up to Congress to eliminate the "asymmetry" by raising or removing limits on contributions to political parties or candidates.

Elsewhere, Judge Kavanaugh has upheld restrictions on campaign spending. A year after Emily ' s List and two months after the Court's decision in Citizens United , in Republican National Committee (RNC) v. FEC , Judge Kavanaugh rejected the RNC's challenge to the statutory "soft-money ban" that prohibited it from raising and spending unlimited contributions to support state candidates, state parties' redistricting efforts, and various "grassroots lobbying efforts." Writing on behalf of a three-judge district court panel, Judge Kavanaugh reasoned that McConnell , which had upheld the soft-money ban notwithstanding its applicability to state election activities, foreclosed the RNC's challenge. Unlike in Emily ' s List —which, as previously noted, concerned a nonprofit—Judge Kavanaugh found McConnell 's anti-corruption justification sufficiently applicable to the RNC. The nominee noted the law's differential treatment of outside groups versus candidates and political parties, but stated that "the RNC's concern about this disparity" is "an argument for the Supreme Court or Congress."

The following year, in Bluman v. FEC , Judge Kavanaugh—once again on behalf of a three-judge district court panel—rejected a First Amendment challenge to a statute barring political contributions by foreign nationals temporarily living in the United States. In doing so, Judge Kavanaugh cited the U.S. government's compelling interest in "limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process." He noted, however, that the court's holding addressed only political contributions and certain expenditures by foreign nationals, not their right to engage in " issue advocacy and speaking out on issues of public policy," and that its decision "should not be read to support such bans."

As noted, Judge Kavanaugh has publicly endorsed the view that political spending is a form of political speech, which suggests that, if confirmed, he may be an unlikely vote to walk back the First Amendment lines that the Court has drawn to date in order to allow the government greater leeway to regulate political contributions and expenditures. If anything, Judge Kavanaugh has seemed to voice some discomfort at certain aspects of the scope and nature of government regulation in this area, particularly with respect to how the law still treats certain speakers differently in the campaign finance realm (e.g., political candidates and parties versus outside groups). His view that the consideration of whether to level the field for these speakers is one for Congress or the Supreme Court raises the question of what position the nominee would take if elevated to the Court.

Free Speech and the Modern Communications Marketplace

While stressing the importance of historical context in some First Amendment cases, Judge Kavanaugh has looked to more recent developments when evaluating the constitutionality of telecommunications and Internet regulations, citing the significance of a speaker's "market power" under the Supreme Court's "landmark decisions" in Turner Broadcasting I and Turner Broadcasting II —both authored by Justice Kennedy.

In Turner Broadcasting I , the Court considered whether the so-called "must-carry provisions" in a 1992 law that "require[d] cable television systems to devote a portion of their channels to the transmission of local broadcast television stations" violated the First Amendment. In his opinion for the Court, Justice Kennedy reasoned that the First Amendment protects cable programmers and operators, who "engage in and transmit speech," and that the must-carry provisions regulate speech by "reduc[ing] the number of channels over which cable operators exercise unfettered control" and "render[ing] it more difficult for cable programmers to compete for carriage on the limited channels remaining." Reviewing the must-carry provisions under "the intermediate level of scrutiny applicable to content-neutral restrictions that impose an incidental burden on speech," Justice Kennedy reasoned that the must-carry provisions were "justified by special characteristics of the cable medium: the bottleneck monopoly power exercised by cable operators and the dangers this power pose[d] to the viability of broadcast television." However, the Court remanded the case for additional fact-finding to determine whether the provisions burdened more speech than necessary to address the threat Congress perceived to broadcast television. Three years later, following remand, the case again reached the Court in Turner Broadcasting II , where Justice Kennedy's majority opinion concluded that the must-carry provisions "do not burden substantially more speech than necessary to further [Congress's] interests," and therefore, did not violate the First Amendment.

Thirteen years later, a D.C. Circuit panel that included Judge Kavanaugh considered the applicability of the Turner Broadcasting cases in Cablevision Systems Corp. v. FCC . In that case, two cable companies challenged an FCC decision to temporarily extend a statutory "exclusivity provision" barring exclusive contracts between "multichannel video programming distributors" such as cable operators and cable-affiliated programming networks. Two members of the panel rejected the companies' First Amendment argument, in large part based on the D.C. Circuit's 1996 decision in Time Warner Entertainment Co. v. FCC , which relied on Turner Broadcasting to uphold the underlying exclusivity statute against a similar First Amendment challenge.

Judge Kavanaugh dissented, reasoning that the Turner Broadcasting and Time Warner courts had upheld restrictions on the "editorial and speech rights of cable operators and programmers . . . only because of the 'bottleneck monopoly power exercised by cable operators.'" In Judge Kavanaugh's view, the relevant market had "changed dramatically" since "those mid-1990s cases" to the point where cable operators "no longer possess bottleneck monopoly power." In particular, Judge Kavanaugh noted the range of video programming options available to consumers, not only through traditional cable networks, but also through cell phone companies and the Internet. The legal import of all these developments, Judge Kavanaugh concluded, is that "the FCC's exclusivity ban . . . is no longer necessary to further competition—and no longer satisfies the intermediate scrutiny standard set forth by the Supreme Court for content-neutral restrictions on editorial and speech rights." Judge Kavanaugh reasoned that in addition to the lack of market power to justify the restriction, the exclusivity rule raised special First Amendment concerns because it did not regulate evenhandedly, applying to cable operators like Cablevision but not "similarly situated video programming distributors and video programming networks" like DIRECTV, DISH, Verizon, or AT&T.

Of potential significance, Judge Kavanaugh proceeded to "offer a few additional observations" about the First Amendment's applicability in the telecommunications sphere; among the various points raised in this section of the opinion, Judge Kavanaugh reasoned that Congress and regulatory agencies have more leeway to adjust to the "realities of a changing market" in "ordinary economic regulation cases," such as those involving "energy, labor relations, the environment, or securities transactions." In contrast, he posited, the First Amendment requires "a more 'laissez-faire' [regulatory] regime" when the restriction concerns "communication markets." Judge Kavanaugh further reasoned that the First Amendment may permit the government to regulate in a content-neutral manner in a noncompetitive market, but "when a market is competitive, direct interference with First Amendment free speech rights in the name of competition is typically unnecessary and constitutionally inappropriate."

Judge Kavanaugh offered similar observations in another case involving the FCC's "Viewability Rule," which "requir[ed] 'hybrid' cable companies—that is, those that provide both analog and digital cable service—to 'downconvert' from digital to analog broadcast signals from must-carry stations for subscribers with analog television sets." The FCC had allowed the Viewability Rule to lapse and replaced it with a new rule, in part because of constitutional concerns. Judge Kavanaugh, in a concurring opinion, reasoned that the FCC "was right to perceive a serious First Amendment problem with the Viewability Rule," echoing many of the arguments he made in Cablevision regarding the "dramatically changed marketplace" against which the Court must evaluate the constitutionality of the "broader must-carry regime." In Judge Kavanaugh's view, "cable regulations adopted in the era of Cheers and The Cosby Show are ill-suited to a marketplace populated by Homeland and House of Cards "; furthermore, "[b]ecause cable operators no longer wield market power," Judge Kavanaugh reasoned that "the Government can no more tell a cable operator today which video programming networks it must carry than it can tell a bookstore what books to sell or tell a newspaper what columnists to publish."

The significance of market power also featured prominently in Judge Kavanaugh's dissent from an en banc circuit decision not to review a panel order upholding the FCC's 2015 net neutrality rule. The rule prohibited ISPs from blocking or throttling (i.e., slowing down) legal content and from agreeing to favor the delivery of certain content for a fee or to benefit an affiliated entity. Judge Kavanaugh described the rule as "one of the most consequential regulations ever issued by any executive or independent agency in the history of the United States." In Judge Kavanaugh's view, the rule "transform[ed] the Internet by imposing common-carrier obligations on [ISPs] and thereby prohibiting [them] from exercising editorial control over the content they transmit to consumers." He reasoned that imposing such obligations on ISPs without demonstrating that they possess "market power" violates the First Amendment under the Turner Broadcasting cases. While acknowledging that the net neutrality rule pertained to ISPs, not cable television operators, Judge Kavanaugh reasoned that these businesses "perform the same kind of functions," suggesting, by way of example, that "[d]eciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes." Judge Kavanaugh also rejected the FCC's attempt to distinguish ISPs from cable television operators on the basis that ISPs do not exercise editorial control, reasoning that even if ISPs "have not been aggressively exercising their editorial discretion," they do not forfeit their right to do so.

In view of the foregoing opinions, Judge Kavanaugh, if confirmed, could be a key voice on the Supreme Court as it continues to refine the contours of First Amendment law in the Internet age. Judge Kavanaugh's opinions suggest that he believes that, barring some sort of market irregularity, the First Amendment should apply with the same rigor to restrictions on Internet speakers and content providers as to other purveyors of speech in the communications industry, and that technological developments and increased competition could lessen the need for government regulation in the communications marketplace.

Commercial Speech and Commercial Disclosures

Some First Amendment contexts implicate more than one of the Supreme Court's tests for evaluating the constitutionality of a speech regulation. In these circumstances, the court may not reach agreement on the governing doctrine, and, as Judge Kavanaugh has argued, the outcome of the case may depend on which test the court applies and the factors that the court considers in applying it. Debates over the appropriate First Amendment test to apply have often arisen in the context of commercial speech and commercial disclosures.

In its 1980 decision in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York , the Supreme Court developed an "intermediate" standard of scrutiny for evaluating commercial regulations that implicate speech. This test requires the government to articulate more than a rational basis for its regulatory decision, but does not necessitate that the law be the "least restrictive means" of achieving the government's interest (a key feature of strict scrutiny). However, since Central Hudson , the Court has, at times, departed from using the test articulated in the 1980 decision, with some members of the Court going so far as to question the basis for treating commercial speech differently from core political speech, which receives strict scrutiny—at least in certain circumstances. The debate over the proper test for evaluating commercial speech restrictions also calls into question the scope of doctrines created for purposes of evaluating commercial disclosure requirements, which some courts have likened to rational basis review. In American Meat Institute v. Department of Agriculture , Judge Kavanaugh offered a path to reconciling the Court's current tests for commercial speech and commercial disclosures.

In American Meat Institute , the full circuit considered the constitutionality of a federal regulation requiring the disclosure of certain country-of-origin information for meat products. As a threshold matter, the court considered which of two First Amendment standards developed by the Supreme Court applied to the regulation. The first standard was the "general test for commercial speech restrictions" set forth in Central Hudson : whether the regulation directly advances a substantial governmental interest and is narrowly drawn to achieve that end. The second standard involved the Court's decision in Zauderer v. Office of Disciplinary Counsel , which concerned government-mandated disclosures aimed at preventing consumer deception. Under the Zauderer standard, a "purely factual and uncontroversial" disclosure requirement comports with the First Amendment when it is "reasonably related to the [government's] interest in preventing deception of consumers." The en banc court in American Meat Institute interpreted Zauderer to apply outside the context of consumer deception and concluded that the country-of-origin labeling requirements passed muster under Zauderer .

Although he agreed with the majority's conclusion that the First Amendment does not bar the country-of-origin labeling requirements, Judge Kavanaugh wrote separately to explain how the "two basic Central Hudson requirements apply to this case." With respect to Central Hudson 's first prong requiring a substantial governmental interest, Judge Kavanaugh reasoned that the need to prevent consumer deception and to ensure consumer health or safety are "historical" and "traditional" interests justifying commercial disclosures. However, Judge Kavanaugh reasoned that the "the Government cannot advance a traditional anti-deception, health, or safety interest in this case because a country-of-origin disclosure requirement obviously does not serve those interests." Moreover, Judge Kavanaugh found that the interest that the government had asserted —providing consumers with information—was insufficient for First Amendment purposes. Nevertheless, Judge Kavanaugh reasoned that "country-of-origin labeling is justified by the Government's historically rooted interest in supporting American manufacturers, farmers, and ranchers as they compete with foreign" counterparts.

Judge Kavanaugh then concluded that the labeling requirement satisfied Central Hudson 's second prong "concern[ing] the fit between the disclosure requirement and the Government's interest." In doing so, he characterized the debate over the Central Hudson versus Zauderer tests as presenting a "false choice," reasoning that " Zauderer is best read simply as an application of Central Hudson , not a different test altogether." Under Judge Kavanaugh's interpretation, " Zauderer tells us what Central Hudson 's [second prong] means in the context of compelled commercial disclosures: The disclosure must be purely factual, uncontroversial, not unduly burdensome, and reasonably related to the Government's interest."

Judge Kavanaugh's concurrence in American Meat Institute is potentially notable in several respects. First, while rejecting the view that the public's right to know in and of itself can justify compelled commercial disclosures, Judge Kavanaugh seemed to implicitly accept that cases like Zauderer may justify government-compelled disclosure for reasons other than preventing consumer deception —which is an open question for the Supreme Court. He did note, however, that "the compelled disclosure must be a disclosure about the product or service in question to be justified under Central Hudson and Zauderer "—a qualification that the Supreme Court recently confirmed, at least with respect to Zauderer 's application, in NIFLA v. Becerra . Second, Judge Kavanaugh interpreted the Supreme Court's precedents to require a substantial governmental interest, even under Zauderer . In doing so, he looked to "history and tradition" to discern what interests outside the context of preventing consumer deception might be "substantial." This approach raises a question as to whether Judge Kavanaugh, if confirmed, would invalidate compelled disclosures that lack a "historical pedigree." Finally, Judge Kavanaugh seemed to interpret Zauderer 's test to be as rigorous as Central Hudson 's intermediate scrutiny standard, notwithstanding contrary views of Zauderer from other courts. Although the foregoing observations could be viewed simply as the judge's attempts to interpret and reconcile existing Supreme Court precedent, they could also signal his potential alignment with the wing of the Court that has advocated for a more rigorous form of review for commercial speech and compelled speech.

Limits on First Amendment Protections

Like Justice Kennedy, Judge Kavanaugh's view of the First Amendment's protection of free speech is not unbounded. In cases where the challenged governmental action implicated national security or concerned government speech or a regulation directed at conduct, Judge Kavanaugh upheld the government's action.

al Bahlul v. United States involved a First Amendment challenge by an assistant to Osama bin Laden who complained that "he was unconstitutionally prosecuted [by a U.S. military commission] for his political speech," which included his production of "propaganda videos for al Qaeda." In an opinion concurring in part and dissenting in part from the judgment, Judge Kavanaugh reasoned that the government based the appellant's conspiracy conviction on the appellant's conduct, not his speech, but that in any event, appellant "had no First Amendment rights as a non-U.S. citizen in Afghanistan when he led bin Laden's media operation." Judge Kavanaugh further reasoned that even if the First Amendment did apply to the appellant's production of videos in Afghanistan, it did not protect the videos described in the appellant's indictment because they were aimed at inciting imminent lawless action and thus unprotected speech under relevant Supreme Court precedent. He noted that the Supreme Court has been even less willing to recognize protections for such speech when the government seeks to prevent imminent harms as a matter of international affairs and national security. Invoking the words of Justice Jackson, Judge Kavanaugh stated that the Constitution "is not a suicide pact."

In Bryant v. Gates , a former civilian employee with the military sought to publish in Department of Defense (DOD) newspapers distributed on military installations a series of advertisements soliciting readers to "blow the whistle" on alleged military cover-ups. The military denied his requests on the basis of a DOD rule prohibiting the newspapers from including partisan discussions and political commentary. The former employee challenged the rule and the DOD's application of the rule to his proposed advertisements on First Amendment grounds. Applying the test for non-public forums, the court concluded that the restriction on political advertising was reasonable "on its face and as applied to [the advertisements in question]." Although Judge Kavanaugh joined the court's opinion, he authored a separate concurrence "lest this precedent be misinterpreted." In Judge Kavanaugh's view, the "government speech" doctrine—rather than a public forum analysis—best applied to speech restrictions concerning the DOD newspapers. Pursuant to that doctrine, he explained, because the publication constitutes the government's own speech, the military "may exercise viewpoint-based editorial control in running [it]," and could reject not only political advertisements as a category, but also political advertisements conveying a particular message that the military opposes.

Judge Kavanaugh also suggested an alternative analytical approach in a case involving a First Amendment challenge to a D.C. law prohibiting the defacement of public and private property. The panel rejected an anti-abortion protester's argument that the law unconstitutionally prohibited him from writing messages in sidewalk chalk on the street in front of the White House. Although Judge Kavanaugh agreed with the majority's analysis and resolution of the First Amendment issue under the public forum doctrine, he authored a separate concurrence "simply because [he did] not want the fog of First Amendment doctrine to make this case seem harder than it is." In his view, "[n]o one has a First Amendment right to deface government property."

Conclusion

Although by no means unfailing indicators of how Judge Kavanaugh will approach future cases, some broad observations emerge from his free speech jurisprudence. First, Judge Kavanaugh has generally recognized political spending as a form of protected speech and has noted where the Court's election law jurisprudence has resulted in speaker-based distinctions, raising questions as to whether he would maintain those dividing lines. Second, Judge Kavanaugh has applied bedrock First Amendment principles to new forms of media and appears to have viewed regulations of the communications industry—where speech is the product offering—as particularly suspect under the First Amendment. Third, in a case concerning "country-of-origin" labeling requirements, Judge Kavanaugh staked a middle ground in the ongoing debate over the proper test to apply to commercial disclosures. Fourth, like Justice Kennedy, Judge Kavanaugh has recognized limitations on the First Amendment's reach. In particular, he has upheld government actions in cases that he deemed to involve unprotected speech or government speech.

National Security1152

Because of the unique docket at the D.C. Circuit, which has exclusive jurisdiction over certain matters related to military commissions and law of war detention, Judge Kavanaugh has authored or joined a large body of opinions related to national security. Like the themes echoed in several of Justice Kennedy's opinions, the nominee has frequently argued for courts to defer to the authority of the political branches on national security matters. To Judge Kavanaugh, this deference arises from concerns that the judicial branch lacks the institutional competency to address national security and foreign policy debates in the absence of a statutory directive. At the same time, the nominee's deference has limits, as he holds the view that deference is not warranted when a governing statute or constitutional provision calls for a judicial role. Judge Kavanaugh appears less likely than Justice Kennedy to look to international law principles to inform his interpretation of a particular statute or constitutional provision in the absence of an express directive to do so. In addition to his judicial rulings on national security matters, Judge Kavanaugh's non-judicial writings express a special interest in analyzing the constitutional limits on the Executive's power to take the United States to war abroad without congressional authorization, a matter that has not received significant attention from the Supreme Court in the modern era.

Parallels between Justice Kennedy's and Judge Kavanaugh's deference to the political branches are evident in their approach to cases concerning implied constitutional causes of action in the national security realm. In his opinion for the Supreme Court in Ziglar v. Abbasi , Justice Kennedy reasoned that judicial recognition of an implied cause of action—allowing certain individuals who had been detained in the aftermath of the September 11, 2001 attacks to sue the government for monetary damages—would raise separation-of-powers concerns by requiring "judicial inquiry into the national-security realm." In Meshal v. Higgenbotham , Judge Kavanaugh similarly declined to recognize an implied constitutional cause of action for monetary damages arising out of the alleged torture and detention of an American citizen during U.S. anti-terrorism operations in Africa. In a passage echoing Ziglar , the nominee wrote in an opinion concurring in dismissal of the suit that it is Congress, not the judicial branch, that "decides whether to recognize a cause of action against U.S. officials for torts they allegedly committed abroad in connection with the war against al Qaeda and other radical Islamic terrorist organizations."

Judge Kavanaugh has been vocally deferential to the political branches when evaluating national security-related matters that he considered to concern policy choices rather than legal disputes. In al Bahlul v. United States —an en banc case concerning the scope of military commissions' jurisdiction—three dissenting judges argued that the government did not demonstrate that military exigency required the United States to try a defendant in a military commission, rather than in a court convened pursuant to the judicial authority established under Article III. Judge Kavanaugh responded, stating that the dissenting judges had "no business" evaluating military exigency because they had "no relevant expertise on the question of wartime strategy." The nominee has also opined that courts should not second-guess the judgment of the executive branch in other national security-related matters, such as security clearance decisions or when evaluating how a foreign country is likely to treat a U.S. detainee slated for transfer overseas. Similarly, in a dissenting opinion in an Alien Tort Statute suit against Exxon Mobil involving the Indonesian army, Judge Kavanaugh argued, among other reasons, that because the Department of State submitted a letter explaining that the case could adversely affect U.S. foreign relations and joint terrorism efforts, the suit should be dismissed.

Klayman v. Obama serves as another example that Judge Kavanaugh may be deferential to national security concerns when evaluating challenges to government action. In an opinion concurring in the denial of rehearing en banc, Judge Kavanaugh wrote that the intelligence community's "bulk collection of telephony metadata serves a critically important special need—preventing terrorist attacks on the United States." In Judge Kavanaugh's view, this national security need outweighed competing privacy concerns. And, in a passage echoing his deference toward the political branches, the nominee concluded that those with concerns about the metadata program should focus their efforts on Congress and the Executive.

But Judge Kavanaugh also has expressed the view that federal courts should play a role in some national security-related cases, particularly when the Executive purports to possess the power to deviate from a statutory or express constitutional restriction. "[P]residents must and do follow the statutes regulating the war effort[,]" Judge Kavanaugh wrote in 2016 article in the Marquette Lawyer . And, the nominee noted in the same article, that "in cases where someone has standing—a detainee, a torture victim, [or] someone who has been surveilled—the courts will be involved in policing the executive's use of wartime authority." Although federal courts should not create new rules to regulate the Executive's war powers, Judge Kavanaugh similarly wrote in a 2014 law review article, courts also should not "relax the constitutional principles or statutes that regulate the executive," even during the high stakes of military conflict. For example, in a 2016 speech following the death of Justice Scalia, Judge Kavanaugh expressed support for Justice Scalia's dissenting opinion in Hamdi v. Rumsf el d , which argued that courts should strictly enforce the Suspension Clause in cases challenging military detention of American citizens.

The case of El-Shifa Pharmaceutical Industries Co. v. United States may illustrate how Judge Kavanaugh's views expressed outside the courtroom concerning the role of the judicial branch in national security cases apply in practice. In El-Shifa , Judge Kavanaugh disagreed with the en banc D.C. Circuit's reliance on the political question doctrine as a basis to dismiss claims against the United States arising from the 1998 U.S. bombing of a Sudanese pharmaceutical factory believed to be associated with Al-Qaeda. While Judge Kavanaugh concluded that the case should be dismissed for failure to state an actionable claim, he argued that the court's reliance on the political question doctrine amounted to de facto approval of the Executive's assertion of military authority in a case in which it was the court's responsibility to address the substance of the claims. Presaging the Supreme Court's later ruling in Zivotofsky v. Clinton , Judge Kavanaugh reasoned that the political question doctrine does not require federal courts to decline to resolve a case "simply because the dispute involves or would affect national security or foreign relations." Accordingly, as a jurisdictional matter, Judge Kavanaugh appears skeptical of the view that courts do not have a role in cases solely based on the fact that the dispute raises national security concerns.

One of Judge Kavanaugh's most comprehensive bodies of national security-related jurisprudence, and one that may provide contrast between him and the jurist he may succeed, concerns the detention of enemy belligerents. Whereas Justice Kennedy was instrumental in the Supreme Court's ruling that the constitutional writ of habeas extended to foreign nationals held at Guantanamo Bay, Judge Kavanaugh ruled against detainees in a number of cases concerning the evidentiary rules that apply when adjudicating such habeas cases. Judge Kavanaugh frequently authored or joined panel opinions that concluded the government had presented sufficient evidence that a Guantanamo detainee was "part of" Al-Qaeda and its associated forces, and therefore subject to military detention. In Ali v. Obama , for example, Judge Kavanaugh's opinion for the court explained that the standard of proof to uphold military detention may be less rigorous than the standard in criminal prosecutions because—even in "a long war with no end in sight"—military detention "comes to an end with the end of hostilities."

One issue in which Justice Kennedy and Judge Kavanaugh appear likely to diverge is the extent that international law may inform judicial decisionmaking. In 2004, Justice Kennedy joined a four-Justice plurality concluding that "longstanding law-of-war principles" that arise under international law informed the interpretation of the phrase "necessary and appropriate force" in the 2001 Authorization for the Use of Military Force (2001 AUMF) . And in a concurring opinion in Hamdan v. Rumsfeld , Justice Kennedy wrote that, under the Uniform Code of Military Justice, Common Article 3 of the 1949 Geneva Conventions was "applicable to our Nation's armed conflict with al Qaeda in Afghanistan and, as a result, to the use of a military commission." Justice Kennedy also occasionally considered international law in his opinions outside the national security context.

Judge Kavanaugh, by contrast, at times has been critical of arguments that international legal principles should influence judicial analysis in the absence of a clear statutory reference. In a 2010 concurring opinion in Al-Bihani v. Obama , Judge Kavanaugh expressed the view that the 2001 AUMF did not incorporate judicially enforceable international law limits on the President's wartime authority. "Many international-law norms are vague, contested or still evolving[,]" Judge Kavanaugh wrote in Al-Bihani . While federal courts historically have construed federal statutes to avoid conflicts with international law, Judge Kavanaugh argued that constitutional principles and 20th century judicial developments make such a rule of construction inappropriate in some cases. Judge Kavanaugh expressed similar views in his 2016 concurring opinion in a l Bahlul where he stated that federal courts are not "roving enforcers of international law[,]" and they are not permitted to "smuggle international law into the U.S. Constitution and then wield it as a club against Congress and the President in wartime."

At the same time, Judge Kavanaugh has not been exclusively critical of international law. In his 2016 a l Bahlul opinion, he described international law as "important" and stated that "the political branches have good reason to adhere" to it. Moreover, when governing statutes or regulations expressly incorporated international law into U.S. domestic law, Judge Kavanaugh interpreted and enforced international legal principles. For example, Judge Kavanaugh joined an opinion concluding that an applicable U.S. Army Regulation incorporated international legal protections afforded to medical personnel on the battlefield —although the court ultimately concluded that those protections did not apply under the facts of the case. And in a 2012 decision, Judge Kavanaugh analyzed whether international law recognized certain criminal offenses for which a defendant was convicted in a military commission because, in that case, Congress " explicitly incorporated international norms into domestic U.S. law."

Finally, in several academic publications, Judge Kavanaugh explored what he believes to be one of the most important questions in American constitutional law: whether the president has the power to take the United States into war overseas without congressional authorization. Judge Kavanaugh described the Constitution's war-making power as shared between the legislative and executive branches. In the realm of congressional power, according to Judge Kavanaugh, the legislative branch has broad authority to control whether the United States wages war and to regulate some aspects of how the Executive conducts military operations, such as surveillance, detention, interrogation, and military commissions. In the field of executive power, Judge Kavanaugh noted that Article II makes the President Commander in Chief of the Armed Forces. But, according to the nominee, it is difficult to determine the extent to which the President's war powers are "exclusive and preclusive"—meaning they cannot be regulated by Congress. Other than the power to command troops on the battlefield during a congressionally authorized war, Judge Kavanaugh has stated that the scope of the President's preclusive war powers are unsettled —although he did suggest in dicta that a statute regulating the President's "short-term bombing of foreign targets in the Nation's self-defense" may not survive constitutional scrutiny. Ultimately, Judge Kavanaugh appears to believe that constitutional questions concerning war and national security will continue to be the subject of "heated debate," and that all three branches of government will play a role in resolving them.

Second Amendment1217

The Roberts Court has been closely divided when interpreting the Second Amendment, and Justice Kennedy's replacement will likely play an important role going forward in shaping the jurisprudence governing the scope of the Second Amendment's right to keep and bear arms. Justice Kennedy provided key deciding votes in the two landmark Second Amendment rulings of the Roberts Court. First, in 2008, he joined the five-Justice majority in District of Columbia v. Heller ( Heller I ), which held for the first time that the Second Amendment protects an individual's right to possess a firearm. Then in 2010, he joined another 5-4 majority in McDonald v. City of Chicago , which held that the Second Amendment is applicable to the states via the Fourteenth Amendment. Neither Heller I nor McDonald purported to define the full scope of the right protected by the Second Amendment, although the Court cautioned that "the right secured by the Second Amendment is not unlimited." And the Court has issued virtually no opinions meaningfully interpreting the Second Amendment since McDonald . Accordingly, in the wake of Heller I , the various federal circuit courts have examined the contours of the Second Amendment with little guidance from the High Court, requiring the lower courts to identify the appropriate standard of review for federal and state firearm restrictions. And Judge Kavanaugh undertook this task a year after McDonald was decided in Heller II , in which he authored a notable dissent construing and applying Heller I differently from the prevailing method that other federal district and circuit courts use.

Heller II assessed whether the District of Columbia's Firearms Registration Amendment Act (FRA) comported with the Second Amendment. In particular, Heller II evaluated three of the FRA's provisions: (1) its firearm registration requirement; (2) its prohibition on the possession of certain semi-automatic rifles that fell within the FRA's definition of "assault weapons"; and (3) its prohibition on the possession of large-capacity magazines with a capacity for more than ten rounds of ammunition. In a 2-1 ruling over Judge Kavanaugh's dissent, the D.C. Circuit largely upheld the challenged FRA provisions. The majority began by applying the two-step framework that has been employed by nearly all federal circuit courts that have considered Second Amendment challenges post- Heller I , first asking whether the provisions implicate a right protected by the Second Amendment, and, if so, second, analyzing the provisions under the appropriate level of judicial scrutiny (e.g., rational basis review, intermediate scrutiny, or strict scrutiny). Ultimately, the D.C. Circuit generally upheld the challenged requirements. While remanding the case to review several specific registration requirements, the court concluded that the general requirement that a gun be registered with the government fell within the category of "longstanding prohibitions" on the possession and use of firearms that the Supreme Court considered to be "presumptively lawful regulatory measures" that do not garner Second Amendment protection. Further, the court concluded that the ban on semi-automatic rifles and large-capacity magazines withstood intermediate scrutiny and, thus, were lawful because the government had shown a reasonable fit between the prohibitions and its interests in protecting police officers and controlling crime.

In his dissent, Judge Kavanaugh wrote at length about the meaning and import of the High Court's decision in Heller I , opining that:

Heller , while enormously significant jurisprudentially, was not revolutionary in terms of its immediate real-world effects on American gun regulation. Indeed, Heller largely preserved the status quo of gun regulation in the United States. Heller established that traditional and common gun laws in the United States remain constitutionally permissible. The Supreme Court simply pushed back against an outlier local law—D.C's handgun ban—that went far beyond the traditional line of gun regulation.

And, in Judge Kavanaugh's view, the FRA—like the District of Columbia's handgun ban that came before it—is an "outlier" and thus unconstitutional under Heller I . He reasoned that the FRA provisions are outliers because they are not common or traditional firearm laws: "As with D.C.'s handgun ban [struck down in Heller I ], . . . holding these D.C. laws unconstitutional would not lead to nationwide tumult. Rather, such a holding would maintain the balance historically and traditionally struck in the United States between public safety and the individual right to keep arms . . . ."

Notably, unlike the Heller II majority and several other federal circuit courts, Judge Kavanaugh proposed, in line with his general skepticism of balancing tests, that firearm laws should be evaluated not according to a particular level of scrutiny but, rather, "based on the Second Amendment's text, history, and tradition (as well as by appropriate analogues thereto when dealing with modern weapons and new circumstances)." While the nominee acknowledged that Heller I did not direct lower courts as to the appropriate analytical framework for analyzing Second Amendment claims, he concluded that "look[ing] to text, history, and tradition to define the scope of the right and assess gun bans and regulations" is the "clear message" from Heller I because the Supreme Court had gauged firearms laws according to "historical tradition," including whether a measure is "longstanding" or regulates weapons that "citizens typically possess" and that are "in common use." Further, he contended that the Heller I majority rejected "judicial interest balancing," which, in his view, includes strict or intermediate scrutiny, to assess whether a government restriction on firearms is permissible.

Applying this analysis in his Heller II dissent, Judge Kavanaugh would have invalidated two of the three challenged FRA provisions. With respect to the FRA's gun registration law, the nominee maintained that the "fundamental problem" with the law was that—in contrast to gun licensing and recordkeeping laws—gun registration requirements were "not 'longstanding,'" in that registration of lawfully possessed guns "has not been traditionally required in the United States and, indeed, remains highly unusual today." In arguing for striking down the District of Columbia's ban on semi-automatic rifles that fell within the FRA's definition of "assault weapons," the nominee maintained that semi-automatic rifles are "traditionally and widely accepted as lawful possessions." And with respect to the FRA's prohibition on the possession of large-capacity magazines, the nominee would have remanded the case to the lower court to determine whether large-capacity magazines have traditionally been banned and are not in common use.

As the nominee's writings on the Second Amendment reveal, adding Judge Kavanaugh to the Supreme Court's bench could shape the way that Second Amendment claims are evaluated, which, in turn, could potentially affect the legality of firearm legislation at the federal, state, and local levels. For instance, were the Supreme Court to adopt Judge Kavanaugh's history and tradition test for evaluating the scope of the Second Amendment—an approach that differs from the prevailing two-step approach adopted by nearly all federal circuit courts —it is possible that renewed challenges will be raised to some firearms laws that were upheld under the previous two-step approach. That said, it is still possible that a court would reach the same result regarding a firearm law's permissibility under Judge Kavanaugh's suggested methodology as under the earlier approach. Moreover, as the nominee noted in Heller II , government bodies may have more flexibility under his proposed method of analysis than under the strict scrutiny test used at times by some circuit courts because "history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right and are consistent with that right, as the Court said in Heller [I] ."

Judge Kavanaugh's disagreement with how the lower courts have generally interpreted the Second Amendment has prompted some commentators to argue that the nominee would necessarily vote in favor of granting a petition for certiorari in a case involving the Second Amendment. While the decision to grant certiorari generally does not hinge on a Justice's mere agreement or disagreement with a lower court's opinion, it is certainly possible that a new Justice could result in changes to the Court's docket, including with respect to Second Amendment cases. Since Heller I , the Supreme Court has reviewed two Second Amendment challenges: first, two years after Heller I in McDonald v. City of Chicago , and then six years after that in Caetano v. Massachusetts .

In Caetano , the Court, without ordering merits briefing or oral argument, issued a short per curiam opinion vacating the decision of the Massachusetts Supreme Court that had upheld a state law prohibiting the possession of stun guns. However, the two-page Caetano opinion principally opined that the state court opinion directly conflicted with Heller I , without engaging in a comprehensive analysis and offering little clarification on the Court's Second Amendment jurisprudence. Since Caetano , the Supreme Court has not granted a petition for certiorari in any Second Amendment matter. During this period, though, Justices Thomas and Gorsuch have dissented from the denial of certiorari in cases raising Second Amendment claims. Because only four Justices are needed for the Court to grant certiorari, and with a number of potentially important Second Amendment cases percolating in the lower courts, Judge Kavanaugh, if confirmed, could play an important role in deciding whether the Supreme Court adds another Second Amendment case to its docket.

Separation of Powers1256

Separation of powers—that is, the law governing the allocation of power among the three branches of the federal government—is perhaps the most critical area of law in understanding Judge Kavanaugh's jurisprudence. Indeed, the nominee views the doctrine of separation of powers as fundamental to every aspect of adjudication, having noted that, from his perspective, "every case is a separation of powers case." Separation of powers was also an important issue for the Justice whom Judge Kavanaugh may succeed, Justice Kennedy. Like most of his fellow Justices, Justice Kennedy viewed the separation of powers as a fundamental aspect of the American constitutional system. Nonetheless, Justice Kennedy did not adopt one particular approach in separation-of-powers cases. As he was on so many other issues, Justice Kennedy was seen as a centrist of separation of powers, embracing in different cases both functional and formal analyses when providing the deciding vote in the Court's most recent decisions on the Constitution's allocation of powers among the federal branches.

Like Justice Kennedy, Judge Kavanaugh views the separation of powers as "not simply [a] matter[] of etiquette or architecture," but as an essential and foundational aspect of the American constitutional system that serves primarily to protect the public from governmental abuse. His general approach is arguably formalist, placing significant emphasis on the text and history of those provisions of the Constitution that establish the "blueprint" for the fundamental design of the federal government and readily implementing the boundaries that he interprets to flow from those provisions. As such, Judge Kavanaugh stresses both the importance of the separation of powers itself and the necessity of the judiciary's role in enforcing the Framers' clear structural choices.

Perhaps because of the significance he attaches to the doctrine, for Judge Kavanaugh, the separation of powers is the lens through which he approaches a wide variety of controversies, including cases relating to standing, administrative law, appropriations law, national security law, war powers, and others. Many of these aspects of Judge Kavanaugh's jurisprudence are addressed in other parts of this report and will not be discussed here. Instead, this section focuses on his general theory of the domestic separation of powers and how it shapes his views on specific topics such as the judiciary's role in checking violations of the doctrine; the President's obligation to comply with and enforce the law; legislative and executive immunity; executive privilege; requiring the President to comply with a subpoena; and the structural design of administrative agencies.

Judge Kavanaugh's General Theory of the Separation of Powers

As opposed to Justice Kennedy, who did not necessarily adhere to a uniform approach in separation-of-powers cases, Judge Kavanaugh appears to have a distinct doctrinal approach to implementing and enforcing the Constitution's balance of power between Congress, the courts, and the President. While some commentators have described Judge Kavanaugh's general separation-of-powers theory as one that is generally predisposed to a strong Executive, especially in cases that pit the executive branch against the legislative branch, it is does not appear that a desire for a powerful Executive necessarily drives the nominee's views. To be sure, Judge Kavanaugh has acknowledged that his views of the separation of powers, and executive power specifically, have been informed by his various experiences as an executive branch lawyer. And there are certainly areas, discussed in more detail below, in which Judge Kavanaugh has written separately to articulate a position that favors executive power, at times at the expense of congressional authority. In other instances, however, Judge Kavanaugh has written separately in order to express a position that would tend to favor Congress, at times at the expense of executive power.

Instead of being solely guided by a preference toward the power of a particular branch, Judge Kavanaugh's views on the separation of powers appear to be more complex and nuanced. The nominee's opinions suggest a basic mode of interpretation in separation-of-powers cases that focuses primarily on the constitutional text and its original understanding. If the text is ambiguous, as it is in most aspects of the separation of powers, Judge Kavanaugh regularly turns to historical practice to inform the meaning of the Constitution's structural provisions. Because of this "history-focused approach," Judge Kavanaugh has generally viewed laws and actions that have few or no historical analogues as suspect.

Beyond this initial interpretive framework, there appears to be a trio of conceptual principles that not only influence, but define Judge Kavanaugh's approach to the separation of powers: liberty, accountability, and governmental effectiveness. As discussed in more detail below, these three principles have consistently acted as a frame for his analyses and guided him in his ultimate conclusion in separation-of-powers cases.

Liberty. Judge Kavanaugh's enforcement of separation-of-powers boundaries does not appear to be grounded in preserving a specific allocation of authority among the branches. Instead, his emphasis on policing transgressions from the constitutional scheme is a product of his concern over the protection of individual rights. The Framers made specific structural choices out of fear that an accumulation of power in any single branch would pose a threat to individual freedoms through governmental abuse. Accordingly, the starting and ending point of Judge Kavanaugh's view of separation-of-powers analysis is consistently focused on enforcing the structural provisions of the Constitution in order to protect individual liberty. Moreover, he has described "the liberty protected by the separation of powers" as "primarily freedom from government oppression, in particular from the effects of legislation that would unfairly prohibit or mandate certain action by individual citizens, backed by punishment." As a result of his focus on coercive action, his separation-of-powers concerns are most acute in cases involving governmental imposition and enforcement of law or regulations upon private entities.

Accountability. Liberty, in Judge Kavanaugh's view, goes hand in hand with accountability. "Our constitutional structure is premised," Judge Kavanaugh has written, "on the notion that . . . unaccountable power is inconsistent with individual liberty." This accountability rationale is most apparent in Judge Kavanaugh's discussion of the executive branch structure, where the Constitution ensures, in the nominee's view, that the executive power be wielded by the President, and the President alone, because he is accountable to the voters. This accountability-rationale forms the foundation for Judge Kavanaugh's conclusion that the President must be able to supervise and direct those subordinate officials who exercise executive power. As a result, the nominee has viewed laws that seek to excessively insulate a government official from presidential control as a threat to democratic accountability and inconsistent with the structural separation of powers. For instance, he concluded that a "single-Director independent agency," such as the CFPB, lies "outside" of constitutional norms in part because such an agency head "is not elected by the people and is . . . not remotely comparable to the President in terms of accountability."

Effectiveness. Judge Kavanaugh's view of the separation of powers does not necessarily appear to seek to preserve liberty and ensure accountability at the expense of a workable government. Instead, Judge Kavanaugh has reasoned that the Constitution's structural provisions were intended to preserve "effective" government. For example, the Founders choice of a single, unitary head of the Executive was intended, in the nominee's view, to "enhance[] efficiency and energy in the administration of the government." The legislative branch, on the other hand, was intended, according to Judge Kavanaugh, to be effective, but not necessarily efficient, as the legislative process was "designed to be difficult" in order to "protect individual liberty and guard against the whim of majority rule." For example, it is the principle of effectiveness that appears to animate Judge Kavanaugh's view that legal immunity for government officials protects effectiveness by limiting the distractions of litigation.

Judicial Role in Maintaining the Separation of Powers

Judge Kavanaugh's opinions and academic writings appear to support a robust role for judges in enforcing the separation of powers. As noted elsewhere in this report, Judge Kavanaugh has suggested that judges should, and indeed are required as part of their judicial duty, to take an active role in interpreting statutory delegations of authority to federal agencies, rather than deferring to the agency's view. That conception of the role of the judge extends to enforcing the structural separation of powers, where the nominee has said that deferring to Congress's or the President's views of the Constitution would be to "abdicate to the political branches" a "constitutional responsibility assigned to the judiciary." Judge Kavanaugh's view of the judiciary's role in the separation of powers is reflected in his concurring opinion in El-Shifa Pharmaceutical Industries v. United States . The en banc majority opinion in El-Shifa affirmed a district court opinion holding that the political question doctrine barred a claim under the Federal Tort Claims Act by a Sudanese pharmaceutical company whose plant had been destroyed by an American missile strike. Judge Kavanaugh wrote separately to establish his position that the political question doctrine has never, and should not be, applied to avoid judicial review when the claim is for violation of a statute, rather than violation of the Constitution. In reaching that decision, Judge Kavanaugh relied on the practical effect of an extension of the political question doctrine to statutes that regulate executive conduct, noting that dismissal in such cases would amount to an implicit holding "that the statute intrudes impermissibly on the Executive's prerogatives." Such an approach, he wrote, would "systematically favor the Executive branch over the Legislative Branch." Instead, Judge Kavanaugh concluded that such "[w]eighty" separation-of-powers questions "must be confronted directly through careful analysis of Article II—not answered by backdoor use of the political question doctrine, which may sub silentio expand executive power in an indirect, haphazard, and unprincipled manner."

Judge Kavanaugh's separate opinion in Sissel v. HHS is instructive for both his general approach to the separation of powers and his views on the judicial role in enforcing the doctrine. In Sissel , Judge Kavanaugh dissented from a denial of rehearing en banc in a case asserting that certain ACA provisions requiring individuals lacking health insurance coverage to pay a penalty were grounded in an amendment introduced in the Senate and therefore violated the Origination Clause, which provides that "All Bills for raising revenue shall originate in the House of Representatives." The panel opinion concluded that whether a law is subject to the Origination Clause depends on the primary purpose of that bill. According to the panel, the ACA was not a revenue raising bill because its purpose was to "spur conduct, not to raise revenue" and, therefore, did not have to originate in the House. Judge Kavanaugh agreed with the panel's ultimate holding that the law did not violate the Origination Clause, but not its rationale. In an analysis that reflects his traditional separation-of-powers analysis—namely a focus on text, history, and personal liberty—Judge Kavanaugh instead concluded that the ACA was, in fact, a revenue raising bill that originated in the House. While it was true that the Senate had replaced the original House language, Judge Kavanaugh reasoned that such Senate alterations to House language were "permissible" under the Clause's text and history. Judge Kavanaugh took exception to the panel's purpose-focused, functionalist approach, arguing that it threatened the efficacy of a constitutional provision that was an "integral part of the Framers' blueprint for protecting people from excessive federal taxation." The Framers, Judge Kavanaugh argued, had deliberately divided power among the House and Senate, much as they had divided power among the branches, in order to "avoid the dangers of concentrated power and thereby protect individual liberty." By providing the House with the "exclusive" power to originate tax bills, the Framers adopted a structural safeguard designed to protect against the "dangers inherent in the power to tax." The panel decision, Judge Kavanaugh opined, had adopted a mode of reasoning that would "blow" open a "giant new exemption from the Origination Clause" that would functionally eliminate the judiciary's role in policing adherence to that Clause. In justifying judicial intervention, Judge Kavanaugh wrote that "the Judiciary has long played a critical role in preserving the structural compromises and choices embedded in the constitutional text." That role is the same whether a court is asked to enforce structural separation among the branches, or wholly within a branch. "It is not acceptable," argued Judge Kavanaugh, "for courts to outsource preservation of the constitutional structure to the political branches."

Presidential Execution of the Law

The opinion that perhaps sheds some of the greatest light on Judge Kavanaugh's view of the scope of executive power vis-à-vis Congress is an opinion involving appropriations for nuclear waste disposal. In a portion of a 2013 ruling, In re Aiken County , Judge Kavanaugh staked out a position on a relatively unsettled area of the law: namely, the nature of the obligation the Take Care Clause imposes on the executive branch to follow and enforce federal law. The Take Care Clause, and its relationship to the President's general Article II powers, has been the subject of significant legal debate. Judge Kavanaugh's position in that case, which is generally consistent with the position expressed by the executive branch, would appear to provide the President with some, but not complete flexibility in how he approaches the execution of federal statutes.

In re Aiken County concerned whether the Nuclear Regulatory Commission (NRC) was required to act on the Department of Energy's license application for a nuclear waste depository at Yucca Mountain, despite the fact that adequate appropriations were not available to complete that review. Writing for the court, Judge Kavanaugh determined that the NRC had a statutory obligation to review the license, could not simply disregard the law, and, therefore, must expend available, if insufficient, funds on that task. However, having found that the NRC's inaction violated the agency's general obligation to comply with the law, Judge Kavanaugh nevertheless addressed a pair of tangential constitutional principles that—when applicable—could permit the executive branch to "decline to act in the face of a clear statute." His opinion acknowledged at the outset that neither principle applied to the case at hand, and indeed a concurring judge found the discussion to be "unnecessary." Judge Kavanaugh nevertheless proceeded to address what he viewed as "settled, bedrock principles of constitutional law."

First, Judge Kavanaugh addressed the President's authority to disregard a statutory provision the President views as unconstitutional. While each branch may independently interpret the Constitution, and Presidents have long claimed the authority to disregard laws they determine to be unconstitutional, the Supreme Court has not established clear principles to govern whether the President may unilaterally declare that a statute may be disregarded. Judge Kavanaugh's opinion concluded that the President has such authority, writing that "[i]f the President has a constitutional objection to a statutory mandate or prohibition, the President may decline to follow the law unless and until a final Court order dictates otherwise." Consistent with his history-focused approach to the separation of powers, Judge Kavanaugh claimed that Presidents have "routinely exercise[d]" such a power. The President may, he reasoned, implement a determination of unconstitutionality by directing his subordinates not to follow the law "unless and until a final Court decision in a justiciable case says that a statutory mandate or prohibition on the executive branch is constitutional." This view would appear to set a default position that favors the President's determinations over the constitutionality of a law over those of Congress, given that the President's determination controls until an explicit court ruling rejects that position. It could be taken to imply that even when existing Supreme Court precedent suggests a conclusion that runs counter to the President's determination, the President may still be authorized to disregard a law he views as unconstitutional until a court directly rules on his claim. Because, by not implementing a law, a President may make it less likely that a "case or controversy" will arise upon which a court could ultimately rule, this view of nonenforcement may necessarily enhance the executive's constitutional views.

Second, Judge Kavanaugh addressed the "very controversial" topic of prosecutorial discretion. The doctrine of prosecutorial discretion provides the President and executive branch officials with leeway in deciding when, and at times whether, to enforce federal laws that place obligations on the general public. Kavanaugh's Aiken County opinion views this discretion as arising from the President's authority under Article II, and perhaps primarily, from the power to pardon. His opinion articulated broad presidential discretion in determining whether to initiate the enforcement of specific laws, noting that enforcement decisions can be based "on the President's own constitutional concerns about a law or because of policy objections to the law, among other reasons." Judge Kavanaugh's view on prosecutorial discretion appears to have also been informed by his fidelity to individual liberty principles. "One of the greatest unilateral powers a president possesses," wrote Judge Kavanaugh, "is the power to protect individual liberty by essentially under-enforcing federal statutes regulating prior behavior… ."

Judge Kavanaugh maintained, however, that prosecutorial discretion has its limits, especially with regard to laws that do not require the executive branch to enforce legal mandates on the public. The doctrine does not, for example, "encompass the discretion not to follow a law imposing a mandate or prohibition on the Executive Branch," for example a statutory requirement that an agency issue a rule or administer a program. Such mandates, as a general rule, must be followed unless, in Judge Kavanaugh's view, the President has a constitutional objection.

Judge Kavanaugh's views on prosecutorial discretion appear to have evolved between his 2013 Aiken County opinion and a 2016 article in the Marquette Lawyer . In discussing prosecutorial discretion in 2015, he again relied on the scope of the pardon power as informative, questioning "What sense does it make to force the executive to prosecute someone, only then to be able to turn around and pardon everyone?" However, he went on to evidently backtrack from his 2013 statement that the President's discretion in the enforcement of law was a "settled, bedrock principle of constitutional law" and instead described experiences over recent years as showing that the appropriate scope of prosecutorial discretion "is far from settled, either legally or politically." He then wrote:

I will admit that I used to think that I had a good answer to this issue of prosecutorial discretion: that the president's power of prosecutorial discretion was broad and matched the power to pardon. But I will confess that I'm not certain about the entire issue as I sit here today. And I know I'm not alone in my uncertainty.

As such, it would appear that Judge Kavanaugh's views on the scope of the President's power of prosecutorial discretion may not be fully settled.

Legislator and Presidential Immunity

Judge Kavanaugh's views on maintaining an effective government, both in the legislative and executive branches, appear to have informed his views on when Members of Congress and the President may be subject to civil and criminal litigation. Congress's immunity stems from the Speech or Debate Clause, which provides that "for any Speech or Debate in either House" a Member "shall not be questioned in any other Place." The Speech or Debate Clause has generally been interpreted as providing Members with both civil and criminal immunity for "legislative acts." The Supreme Court has described the privilege as being essential to the separation of powers as it ensures that Members have "wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch." Presidential immunity, on the other hand, is not explicitly provided for in the Constitution. Instead, it has been asserted by some to be implicit in Article II and consistent with the separation of powers. For example, the DOJ Office of Legal Counsel has previously concluded that the criminal indictment or prosecution of a sitting President would "impermissibly interfere with the President's ability to carry out his constitutionally assigned functions." That conclusion was based on a variety of factors, including the "burdens" and "stigma" that would be associated with criminal proceedings against a President. While the Supreme Court has previously held that a sitting President enjoys immunity from civil claims for damages predicated on an official act, but is not immune while in office from civil suits for unofficial misconduct, it has not addressed the question of whether a sitting President can be investigated, indicted, or prosecuted for criminal wrongdoing.

Legislative Immunity. Judge Kavanaugh has twice written separately in order to offer a broader conception of legislative immunity under the Speech or Debate Clause than supported by existing D.C. Circuit precedent. In In re Grand Jury Subpoena , the panel held that the Clause prevents a Member from being required to respond to a grand jury subpoena relating to testimony the Member provided during a disciplinary investigation by a congressional ethics committee, so long as that testimony related to official conduct. Judge Kavanaugh filed a concurring opinion in which he articulated his concerns that the panel, and previous D.C. Circuit precedent, had effectively "watered down" Speech or Debate Clause protections for Members by drawing an ambiguous distinction between statements relating to official and personal conduct. The nominee maintained that any statement made by a Member "to a congressional ethics committee is speech in an official congressional proceeding and thus falls within the protection of the clause." In so doing, Judge Kavanaugh relied principally on the plain text of the Speech or Debate Clause, writing that the panel opinion "does not square with the text of the Constitution, which gives absolute protection to 'any speech' by a Member in an official congressional proceeding."

Judge Kavanaugh has also stressed that the Clause protects not only legislative independence from the executive branch, but also from the courts in the form of court ordered disclosures. For example, in Howard v. Office of the Chief Administrative Officer of the House of Representatives , Judge Kavanaugh dissented from a holding that the Speech or Debate Clause did not prevent a congressional employee from pursuing an employment discrimination claim against a congressional office under the Congressional Accountability Act, even when the congressional employer asserts that the reason for the employee's termination or demotion related to "legislative activity." Under the majority's reasoning in Howard , an employee may still proceed with his or her claim and attempt to prove that the employer's stated reason was actually pretext by "using evidence that does not implicate protected legislative matters." Judge Kavanaugh disagreed, again adopting a broader view of the protections afforded by the Speech or Debate Clause by reasoning that the majority's holding would "necessarily [] require congressional employers to either produce evidence of legislative activities or risk liability." The Speech or Debate Clause, he articulated, prevents Members and congressional employers from being "put to this kind of choice by an Article III federal court."

Presidential Immunity . Judge Kavanaugh has not heard any case or written any opinion on the extent to which the Constitution provides a sitting President with immunity from criminal investigation, indictment, or prosecution. He has however, addressed the topic in his academic writings, where he has acknowledged that his views on the topic are informed by his unique personal experiences both investigating a President in Independent Counsel Kenneth Starr's office and advising a President as a White House attorney. Two academic articles—one published in 1998 and the other from 2009—suggest that Judge Kavanaugh believes that a sitting President should, as a policy matter, be accorded both civil and criminal immunity by Congress, and perhaps, that the criminal prosecution of a sitting President is prohibited by the Constitution.

The more recent publication, a 2009 Minnesota Law Review article, made a series of legislative proposals to create a "more effective and efficient federal government." One of those proposals recommended that Congress enact a law providing that all civil suits, criminal prosecutions, and criminal investigations involving a sitting President be deferred until the President has left office. His rationale for the proposal was based principally on governmental effectiveness. "The indictment and trial of a sitting President" Judge Kavanaugh asserted, "would cripple the federal government, rendering it unable to function with credibility." Judge Kavanaugh also noted the unwanted burdens and distractions associated with mere investigations of the President, writing that the "lesser burdens of a criminal investigation—including preparing for questioning by criminal investigators—are time-consuming and distracting." Importantly, the article does not address the legal question of what protections may be afforded the President by the Constitution directly, but only notes that "even in the absence of congressionally conferred immunity, a serious constitutional question exists regarding whether a President can be criminally indicted and tried while in office."

Judge Kavanaugh's 1998 article in the Georgetown Law Journal provided a more robust discussion of the nominee's constitutional views on the question of presidential immunity—at least as they existed at that time and in the context of an independent counsel investigation. Like his 2009 piece, the 1998 article was framed in the context of a series of legislative proposals, one of which would have provided that Congress enact a statute establishing that a sitting President not be "subject to indictment." In considering the question of presidential immunity, Judge Kavanaugh again opined that a "serious question exists as to whether the Constitution permits the indictment of a sitting President." However, his subsequent analysis may suggest that he believed indictment of a sitting President to be constitutionally impermissible on the grounds that the appropriate constitutional remedy for serious presidential misconduct, as guided by history and original understanding, is investigation, impeachment, and removal by Congress, and only then prosecution. The Framers, he argued, warned against the "ill wisdom of entrusting the power to judge the President of the United States to a single person or body such as an independent counsel." Instead, Judge Kavanaugh wrote that the original intent of the Framers and "the Constitution itself seem[] to dictate . . . that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office." Although he framed his discussion as "what should happen," and never explicitly stated that the Constitution outright forbids indictment of the President, Judge Kavanaugh nevertheless seemed to suggest, in the context of discussing this legislative proposal, that "[i]f Congress declines to investigate, or to impeach and remove the President, there can be no criminal prosecution of the President at least until his term of office expires." This conclusion would not, however, mean that the President or other executive branch officials are "above the law" or otherwise not subject to federal criminal provisions. Instead, Judge Kavanaugh's envisioned immunity applies only to the President—and only temporarily—as a President would generally be subject to prosecution for wrongdoing after being removed from office.

Executive Privilege

Related to the question of whether the President may be indicted is the role executive privilege—that is, the constitutionally based privilege that protects executive communications that relate to presidential decisionmaking—may play in an investigation of the President or executive branch officials. The Supreme Court has only rarely addressed executive privilege, but its clearest explanation of the doctrine came in the unanimous opinion issued in United States v. Nixon . That case involved President Nixon's assertion that executive privilege protected him from complying with a criminal trial subpoena—issued at the request of the Watergate Special Prosecutor—for electronic recordings of conversations he had in the Oval Office with White House advisers. The Court rejected both President Nixon's threshold argument, that the Court lacked jurisdiction over what he viewed to be essentially an "intra-branch dispute" between the President and a subordinate executive branch official, and his substantive argument that the Constitution accorded the President an absolute privilege from compliance with a subpoena. In rebuffing the President, the Nixon opinion recognized executive privilege as an implied constitutional principle, holding that the "privilege of confidentiality of presidential communications" is "fundamental to the operation of Government and inextricably rooted in the separation of powers." However, the Court determined that the President's "generalized interest" in the confidentiality of his communications was outweighed by the "demonstrated, specific need for evidence in a pending criminal trial" and ordered the tapes turned over to the district court for in camera review. The Court suggested two caveats to its holding. First, it acknowledged that the "degree of deference" accorded to a President's executive privilege claim may be higher when the privilege claim relates to "military or diplomatic secrets." And second, the Court clarified that "we are not here concerned with the balance between the President's generalized interest in confidentiality . . . and congressional demands for information."

Judge Kavanaugh has expressed mixed views on the Nixon decision. During a 1999 roundtable discussion, Judge Kavanaugh expressed some skepticism as to Nixon 's rejection of the threshold issue of justiciability, suggesting that "maybe Nixon was wrongly decided—heresy though it is to say." The nominee's concern with the Nixon holding appears to have been based on his views of the separation of powers and the President's authority to control both executive branch information and subordinate executive branch officials, a view more fully articulated in Judge Kavanaugh's opinions on agency structure and the presidential removal power discussed below. As the future nominee explained:

Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently. … Maybe the tension of the time led to an erroneous decision.

In that same discussion, Judge Kavanaugh later stated: "Should United States v. Nixon be overruled on the ground that the case was a nonjusticiable intrabranch dispute? Maybe so." Legal commentators have debated the significance of these apparently off-the-cuff remarks, with some arguing that the statement was simply rhetoric used to underscore inconsistencies with a fellow panelist's arguments, while others interpreted the statement as a "radical critique of Nixon. "

More recently however, Judge Kavanaugh has characterized Nixon as one of "the most significant cases in which the Judiciary stood up to the President" and one of the "greatest moments in American judicial history." Additionally, in his 1998 article, in which he engaged in a significant discussion of Watergate and the Nixon case, he never questioned the Court's holding, instead acknowledging that Nixon had "essentially defined the boundaries of executive privilege."

In some ways, Judge Kavanaugh's view of Nixon is less favorable to presidential power than others who have viewed the 1974 decision as requiring an ad hoc balancing test in all cases. For example, the 1998 article reflected Judge Kavanaugh's interpretation of Nixon as establishing a strict, bright-line rule that "the courts may not enforce a President's [executive] privilege claim (other than one based on national security) in response to a grand jury subpoena or criminal trial subpoena." In line with his broader views on judicial balancing tests, Judge Kavanaugh rejected the assertion that Nixon required the courts to balance, on a case-by-case basis, the President's interest in confidentiality against the need for evidence in a particular criminal investigation or prosecution. So long as the basic requirements of relevance (with respect to a grand jury subpoena) or relevance and admissibility (with respect to a trial subpoena) are met, any claim of executive privilege not based on national security or foreign affairs must, in Judge Kavanaugh's view, fail under the principles recognized in Nixon . However, Judge Kavanaugh observed that a President could act outside the courts to protect confidential information by asserting his control over executive law enforcement in order to prevent a judicial dispute over presidential communications from ever getting to the Court. "To do so," wrote Judge Kavanaugh, "a President must order the federal prosecutor not to seek the information and must fire the prosecutor if he refuses (as President Nixon fired [special prosecutor] Archibald Cox)." Such an action would "focus substantial public attention" on the President and force him to take "political responsibility for his privilege claim," suggesting that the nominee's view of the role of executive privilege would impose significant costs on the President if he wished to shield his communications from a criminal investigation.

While there is inadequate evidence to determine precisely how Judge Kavanaugh views the Nixon opinion, in light of the nominee's apparent acceptance of Nixon ' s delineation of executive privilege, it is possible that Judge Kavanaugh's statement that "maybe Nixon was wrongly decided," to the extent that the comment was intended to provide a substantive legal opinion, related primarily to the justiciability question of whether the Court should have mediated a dispute between the President and another executive branch official. A hesitancy to have a court give effect to a subordinate executive branch official's imposition on the President would appear to be consistent with Judge Kavanaugh's general view that executive officials should be accountable to, and under the supervision and control of the President, as well as his view that it should be Congress—and not the courts or an independent prosecutor—that provides the initial remedy to presidential misconduct.

Judge Kavanaugh further opined on the underlying justiciability issues that were at play in Nixon in a 2009 concurring opinion he filed in another case involving a dispute between two executive branch agencies, SEC v. Federal Labor Relations Authority . In his opinion, Judge Kavanaugh articulated the general proposition that "judicial resolution of intra-Executive disputes is questionable under both Article II and Article III." Article II is violated, Judge Kavanaugh asserted, because such an internal dispute should be resolved by the President in the exercise of his executive powers, while Article III is violated because executive branch agencies are not sufficiently "adverse" so as to create the type of "case or controversy" that is necessary for Article III jurisdiction. However, Judge Kavanaugh—citing to, among other cases, Nixon— acknowledged that Supreme Court and lower court precedent have established that courts may hear an intra-branch dispute when one party to the case is an independent agency. In that scenario, "an independent agency can [] be sufficiently adverse to a traditional executive agency to create a justiciable case" because "Presidents cannot (or at least do not) fully control independent agencies." Independent agencies, as Judge Kavanaugh described them, are "agencies whose heads cannot be removed by the President except for cause and that therefore typically operate with some (undefined) degree of substantive autonomy from the President." As a result, Judge Kavanaugh's concurrence appeared to view existing precedent to allow for the adjudication of disputes involving agencies that have been afforded independence under a statute. At the same time, it is unclear whether the nominee would consider it appropriate for a court to resolve an executive branch dispute with an entity that has "substantive autonomy from the President," but is not directly endowed with statutory independence.

Executive Compliance with a Subpoena

Judge Kavanaugh's conception of presidential immunity and executive privilege may also give rise to questions about his views on whether the President may be made to comply with a subpoena for testimony in a criminal proceeding. While the courts will not "proceed against the [P]resident as against an ordinary individual," it is clear under existing jurisprudence that the President is nonetheless not immune from all compulsory judicial process. In Nixon , the Court established that a President may be ordered to comply with a judicial subpoena for documents in a criminal matter, but the opinion did not address compelled testimony . Similarly, in Clinton v. Jones , the Court held that the President is not immune from civil suits for damages arising from unofficial acts, but avoided the question of compelled presidential testimony , noting only that the case did not require the Court "to confront the question whether a court may compel the attendance of the President at any specific time or place." Instead the Court assumed that "the testimony of the President, both for discovery and for use at trial, may be taken at the White House at a time that will accommodate his busy schedule, and that, if a trial is held, there would be no necessity for the President to attend in person, though he could elect to do so." The executive branch, on the other hand, has taken a clear position on compelled presidential testimony, concluding that "sitting Presidents are not required to testify in person at criminal trials."

Judge Kavanaugh has written little on the precise question of whether a President can be compelled to provide testimony in a criminal proceeding. As previously noted, his 2009 article suggested that as a policy matter, Congress should provide the sitting President with immunity from "[e]ven the lesser burdens" of "depositions or questioning in civil litigation or criminal investigations." And although arguably concluding that the Constitution does not permit indictment or prosecution of the President, his 1998 article did not explicitly extend that constitutional analysis to presidential testimony at the investigative stage. However, Judge Kavanaugh's general separation-of-powers views may raise some question of whether he would be willing to enforce a subpoena requiring the President to testify. First, assuming that the subpoena is issued by another executive branch official, the dispute raises questions on how the nominee views the justiciability holding in Nixon . And second, Judge Kavanaugh's academic writings on immunity—in which he has expressed concern over the "burdens" and "distractions" of litigation and investigations involving the President —may suggest some sympathy toward the historical executive branch argument that compelling the President's "personal attendance" would infringe upon the President's ability to carry out his "official functions."

Structural Design of Independent Agencies

One area of the Court's separation-of-powers jurisprudence where Judge Kavanaugh's views have already proven quite influential concerns Congress's authority to provide officers and agencies with independence from the President through the use of removal restrictions and other statutory aspects of agency design. Judge Kavanaugh has played a significant role in what appears to be an ongoing revitalization of the judiciary's recognition of the President's removal power, and the corollary principle that the President, in order to maintain accountability within the executive branch, must maintain some degree of effective supervision and control over subordinate executive officers. This recognition, Judge Kavanaugh asserts, does not necessarily expand the scope of executive power, but instead only ensures that what executive power exists is exercised by the President.

Some historical context is necessary to understand Judge Kavanaugh's positions in this area. Although not explicitly provided for in the Constitution, the President's authority to remove subordinate executive branch officials has historically played a central role in the President's ability to carry out his Article II powers. Removal, the Supreme Court has reasoned, is a "powerful tool for control" because "[o]nce an officer is appointed, it is only the authority that can remove him . . . that he must fear and . . . obey." The precise scope of the removal power, however, as well as Congress's authority to restrict that power through statute in order to insulate an agency or individual official from presidential influence, has been the subject of several Supreme Court opinions. In the 1926 decision of Myers v. United States , the Court invalidated a law that required Senate consent for the removal of certain executive officials, holding that the Constitution conferred the removal power "exclusive[ly]" to the President so as to ensure he maintained "general administrative control of those executing the laws." However, the Court limited the breadth of Myers in the 1935 case Humphrey ' s Executor v. United States , holding that Congress could limit the President's authority to remove members of independent agencies engaged in "quasi-judicial or quasi-legislative" functions by requiring that such officials may only be removed for "inefficiency, neglect of duty, or malfeasance in office." The use of these "for-cause" removal protections to insulate an agency official from the President's control was again upheld in 1988 in Morrison v. Olson , but this time as applied to the Independent Counsel, a single independent official with limited tenure and relatively narrow jurisdiction, rather than a member of an independent commission.

Judge Kavanaugh entered the judicial fray regarding the President's removal power with an influential dissent in the 2008 case Free Enterprise Fund v. PCAOB . In Free Enterprise Fund , the D.C. Circuit panel majority upheld provisions of the Sarbanes-Oxley Act of 2002, which had created a new PCAOB and insulated its members from presidential control through dual layers of "for-cause" removal protections. Board members could be removed only "for cause" by the Securities and Exchange Commission (SEC), who in turn, could themselves be removed by the President, but only for cause. Thus, the President had no direct ability to order the removal of Board members. The panel majority upheld the law, relying primarily on Humphrey ' s Executor and Morrison and their approval of Congress's use of "for-cause" removal restrictions, while holding that the structure did "not strip the President of sufficient power to influence the Board and thus [did] not contravene separation of powers."

Judge Kavanaugh dissented, calling the imposition of dual layers of for-cause removal protections between the President and Board members inconsistent with the original understanding of Article II and historical practice. The Framers, Judge Kavanaugh reasoned, established a unitary head of the executive branch to ensure accountability "by making one person responsible for all decisions made by and in the Executive Branch." The structure of the PCAOB, on the other hand, unduly limited the President's ability to exercise that control, resulting in a "fragmented, inefficient, and unaccountable Executive Branch" that the President could not "fully direct and supervise." With regard to historical practice, Judge Kavanaugh described the dual layers of removal protections as "uniquely structured," "novel," lacking any "historical analogues," and "a previously unheard-of restriction on and attenuation of the President's authority over executive officers"

Judge Kavanaugh also argued that because the Sarbanes-Oxley Act "completely" stripped the President of any direct removal authority over the members of the PCAOB, upholding that structure would require an impermissible extension of Humphrey ' s Executor and Morrison . His reasoning was likely informed by his general position "that Humphrey ' s [ Executor ] and Morrison authorize a significant intrusion on the President's Article II authority to exercise the executive power and take care that the laws be faithfully executed." Viewing those rulings as narrow exceptions to the general rule of Myers , Judge Kavanaugh argued the two cases represent the "outermost constitutional limits of permissible congressional restrictions on the President's removal power." Finally, Judge Kavanaugh warned that upholding this law would "green-light Congress to create a host of similar entities," which would "splinter executive power to a degree not previously permitted."

On appeal, the Supreme Court in a 5-4 ruling authored by Chief Justice Roberts embraced Judge Kavanaugh's dissent, and invalidated the PCAOB's structure. Citing Judge Kavanaugh's dissent, the Court's decision invalidated the "novel" dual for-cause removal scheme on the grounds that it "impaired" the President's "ability to execute the laws . . . by holding his subordinates accountable for their conduct."

Judge Kavanaugh's general skepticism of unique structural schemes that attempt to insulate executive branch officials from presidential control was again evident in PHH Corporation v. C FPB . PHH involved a challenge to the structural design of the CFPB, an independent agency headed not by a multi-member commission, but by a single Director. Judge Kavanaugh issued two substantially similar opinions in the case, both concluding—much like his earlier dissenting opinion in Free Enterprise Fund —that the novel scheme violated the separation of powers and the President's powers under Article II. His first opinion represented an initial panel majority striking down the CFPB's current structure. That decision, however, was vacated when the D.C. Circuit granted en banc review. Upon review, Judge Kavanaugh reaffirmed his views, however this time dissenting from the en banc majority opinion that concluded the CFPB's structure was constitutionally permissible under Humphrey ' s Executor and Morrison .

Judge Kavanaugh's PHH opinions focused on three primary factors, all of which relate directly to his established approach to separation of powers. First, he emphasized the novelty of the CFPB's structure—most independent agencies are headed by multiple members, rather than a single director. "Never before," wrote Judge Kavanaugh, "has an independent agency exercising substantial executive authority been headed by just one person." In his view, this departure from historical practice indicated a potentially serious constitutional defect. Second, Judge Kavanaugh concluded that the concentration of power in a single, unaccountable Director posed a serious threat to liberty. While other independent agency heads may have removal protections, Judge Kavanaugh argued that the multi-member structure demands consensus and acts as a check on the whims of an independent, individual agency head. Third, Judge Kavanaugh argued that removal protections for a unitary agency head diminished the President's Article II power to control the executive branch beyond what has been judicially approved for multi-member independent agencies. In multi-member commissions with statutory removal protections, the President may at least appoint and remove the chair of the agency, ensuring some influence over the agency's direction. With the CFPB, however, Judge Kavanaugh noted that the President may not alter the head of the agency until the end of the five-year term, which means, at least in some cases, the President might not ever be permitted to align the agency with his own policy goals.

Perhaps one of the most important questions arising from Judge Kavanaugh's opinions in Free Enterprise Fund and PHH is what they suggest about his views on the constitutional permissibility of more traditional independent agencies, for example, those that operate with only one layer of for-cause protections and in the form of a multi-member commission. Judge Kavanaugh has previously signaled his discomfort with traditional independent agencies, questioning both their general effectiveness and their underlying legal foundations. For example, in PHH , Judge Kavanaugh noted that Humphrey ' s Executor was "inconsistent" with Myers , has "received significant criticism," and is "in tension with" the Supreme Court's holding in Free Enterprise Fund . On Morrison , Judge Kavanaugh has written that "the independent counsel experiment ended with nearly universal consensus that the experiment had been a mistake and that Justice Scalia had been right back in 1988 to view the independent counsel system as an unconstitutional departure from historical practice and a serious threat to individual liberty." Moreover, the very notion of a subordinate executive branch official operating with independence from the President appears to at least arguably be inconsistent with Judge Kavanaugh's interpretation of the President's constitutional authority to supervise and control " all decisions made by and in the Executive Branch." However, he has not expressly called for overturning Humphrey ' s Executor , nor for the invalidation of all independent agencies. The nominee has explicitly stated that " Humphrey ' s Executor is an entrenched Supreme Court precedent, protected by stare decisis." Ultimately, it is clear that Judge Kavanaugh has concerns about the Court's holdings in Humphrey ' s Executor and Morrison . However, there is some question whether, if confirmed to the Supreme Court, he would view the cases as establishing the "outermost" limits of a constitutional framework that he would be willing to work within, or, whether, if provided with the opportunity, he would be a vote to overturn Humphrey ' s Executor , Morrison , or both. If confirmed, a Justice Kavanaugh would likely be presented with the opportunity to present his views, as additional questions of Congress's authority to insulate executive branch officials and agencies from presidential control are likely to come before the court in the near future.

Substantive Due Process and Fundamental Rights1452

In Obergefell v. Hodges , the Justice that Judge Kavanaugh might succeed, Justice Kennedy, wrote that the "identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution." Many fundamental rights that the Court has identified as warranting constitutional protection stem from the Fifth and Fourteenth Amendments, which prohibit the federal government and the states from depriving any person of "life, liberty, or property, without due process of law." The Court has interpreted these Amendments not only to accord procedural protections against such deprivations, but also to contain a substantive component that prohibits the government from infringing certain fundamental rights unless the government's law or action is narrowly tailored to serve a compelling state interest. These fundamental rights include "most of the rights enumerated in the Bill of Rights," as well as additional, unenumerated rights that the Court has recognized over the years, such as the right to marry or the right to privacy in making certain intimate decisions.

Justice Kennedy's legacy on the bench is closely tied to the issue of substantive due process, having authored or joined the controlling opinions in a number of closely divided cases recognizing unenumerated rights. These cases include his joint opinion in Planned Parent hood of Southeastern Pennsylvania v. Casey , which reaffirmed Roe v. Wade 's recognition of a woman's right to an abortion before fetal viability; his opinion for the Court in Lawrence v. Texas , which recognized the right of consenting adults to engage in private, sexual conduct without governmental interference; and his opinion for the Court in Obergefell , which recognized the right of same-sex couples to marry. However, Justice Kennedy has also declined to recognize due process protections in other cases, such as when he joined the Court's refusal to recognize a fundamental right to physician-assisted suicide in Washington v. Glucksberg .

Justice Kennedy's central role in the development of the Court's substantive due process jurisprudence has cast Judge Kavanaugh's decisions in this area and the nominee's broader judicial philosophy on the subject into the spotlight. In particular, commentators have focused on Judge Kavanaugh's opinions in a case that reached the Supreme Court involving an unaccompanied alien minor who sought an abortion while in U.S. immigration custody, and the judge's scholarly commentary on the Glucksberg decision. These sources and certain other opinions and commentary by Judge Kavanaugh provide very limited insight into his approach to analyzing substantive due process questions, and are unlikely to serve as reliable predictors of the outcome in any given case. Of the relatively few substantive due process cases that Judge Kavanaugh encountered during his tenure on the D.C. Circuit, he authored opinions in only a handful of those cases, some of which presented unique factual and procedural scenarios or directly implicated controlling Supreme Court precedent. Nevertheless, his apparent endorsement of an approach to due process grounded in history and tradition suggests that if confirmed, Judge Kavanaugh may deploy a more narrow view of substantive due process than Justice Kennedy in defining the contours of future rights and protections. This section begins by discussing the nominee's sole opinion on the right to an abortion, before turning to his other writings and comments on substantive due process.

Abortion Jurisprudence

Perhaps more than any other issue, considerable attention has been given to how Judge Kavanaugh might adjudicate cases concerning abortion. As previously noted, Justice Kennedy co-wrote the Court's 1992 opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey , which, by a vote of five Justices, reaffirmed "the essential holding of Roe v. Wade " recognizing: (1) a woman's right, as a matter of substantive due process, to choose to have an abortion before fetal viability and to obtain it without undue interference from the government; (2) a state's power to restrict abortions after viability with exceptions in circumstances where the pregnant woman's life or health is in danger; and (3) a state's legitimate interests throughout the course of a pregnancy in protecting the woman's health and the fetus's life. In a separate portion of the Casey opinion authored and adopted by only three Justices—Justices Kennedy, O'Connor, and Souter—the Court replaced Roe 's "rigid trimester framework" for evaluating abortion regulations with an "undue burden standard" under which a law is invalid "if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." The Court has applied these principles and standards from Casey in subsequent cases.

Twenty-five years after Casey , in Garza v. Hargan , Judge Kavanaugh was asked to consider on an emergency basis how—if at all—to apply Casey 's undue burden standard in a case involving an unaccompanied alien minor (referred to in court opinions as Jane Doe or J.D.) who entered the United States illegally and sought to terminate her pregnancy while living under U.S. custody. J.D., through her guardian ad litem, challenged the government's refusal to transport her or allow her to be transported to obtain state-mandated pre-abortion counseling and the abortion procedure itself. On October 18, 2017, the U.S. District Court for the District of Columbia issued a temporary restraining order (TRO), requiring the government to transport J.D., or to make her available for transport, "promptly and without delay to the abortion provider closest to J.D.'s [detention] shelter in order to obtain the [pre-abortion] counseling required by state law on October 19, 2017, and to obtain the abortion procedure on October 20, 2017 and/or October 21, 2017." The TRO further restrained the government, for a period of fourteen days, from "interfering with or obstructing J.D.'s access to abortion counseling or an abortion."

The government immediately appealed the district court's ruling, arguing that it was not imposing an undue burden on J.D.'s purported right to an abortion under Casey , because (1) the government did not prohibit J.D. from obtaining an abortion, but rather refused to "facilitate" the abortion; (2) J.D. was free to leave the United States and return to her home country; and (3) J.D. could obtain an abortion in the United States after the government has transferred custody of J.D. to an immigration sponsor. On October 20, 2017, the assigned panel composed of Judge Kavanaugh, Judge Karen L. Henderson, and Judge Patricia Millett issued a non-precedential, per curiam (i.e., unsigned) order from which Judge Millett dissented. The order vacated the TRO insofar as it required the government to release J.D. for purposes of obtaining pre-abortion counseling or an abortion. The order also expressed apparent agreement with the government's third argument that transferring J.D. to an immigration sponsor would "not unduly burden the minor's right under Supreme Court precedent to an abortion"—at least so long as "the process of securing a sponsor to whom the minor is released occurs expeditiously." The order authorized the district court to allow the government eleven days (i.e., until October 31, 2017) to secure a sponsor for J.D. and to release her into the sponsor's custody, noting the government's agreement that, upon release, J.D. then would be "lawfully able, if she chooses, to obtain an abortion on her own pursuant to the relevant state law." In the event the government did not meet its deadline, the order permitted the district court to "re-enter" a TRO "or other appropriate order." The order concluded by noting that the government had "assumed, for purposes of this case, that J.D.—an unlawful immigrant who apparently was detained shortly after unlawfully crossing the border into the United States—possesses a constitutional right to obtain an abortion in the United States."

In her dissenting statement, Judge Millett addressed all three of the government's arguments. She rejected the view that merely releasing J.D. for the abortion procedure would constitute facilitating an abortion, as well as the government's position that J.D. could leave the country, reasoning that conditioning J.D.'s right to an abortion on voluntary departure imposed an undue burden because it would require J.D. to relinquish her legal claims to stay in the United States. While acknowledging the government's "understandable" desire to find J.D. a sponsor, she argued that the sponsorship process could proceed simultaneously with the abortion and "is not a reason for forcing J.D. to continue the pregnancy." Judge Millett posited that further delay would make it more difficult for J.D. to find a local abortion provider and increase the health risks associated with the abortion procedure.

Following the panel's order, on October 24, 2017, the full circuit granted J.D.'s petition for rehearing en banc, reinstated the district court's TRO, and denied the government's motion to stay the TRO pending appeal "substantially for the reasons set forth" in Judge Millett's dissenting statement. The en banc court then remanded the case to the district court to revise the dates for the government's compliance with the TRO (which had already passed). Three judges—Judges Henderson, Kavanaugh, and Thomas B. Griffith—dissented from the en banc order. Writing for herself, Judge Henderson argued that the en banc court should have addressed the "antecedent" question of whether J.D., as a minor detained after attempting to enter the United States unlawfully, had a constitutional right to an abortion, which she ultimately answered in the negative.

Judge Kavanaugh, in a dissent which Judges Henderson and Griffith also joined, did not opine on whether J.D. had a constitutional right to obtain an abortion in the United States, noting that "[a]ll parties have assumed [such a right] for purposes of this case." Nor did he discuss the merits of the government's arguments about facilitating abortion or J.D.'s ability to leave the country. Instead, he argued a more narrow point: that the panel decision, rendered in emergency proceedings, "prudently accommodated the competing interests of the parties" by providing the government with a limited time period in which to find a sponsor for J.D. In Judge Kavanaugh's view, the panel order fully comported with the Supreme Court's abortion cases, which "repeatedly" recognized the government's "permissible interests in favoring fetal life, protecting the best interests of the minor, and not facilitating abortion, so long as the Government does not impose an undue burden on the abortion decision." First, Judge Kavanaugh found it "reasonable for the United States to think that transfer to a sponsor would be better than forcing the minor to make the decision [to continue or terminate her pregnancy] in an isolated detention camp with no support network available." Second, he argued that requiring the government to complete the sponsorship process expeditiously imposed no undue burden, reasoning that "[t]he Supreme Court has repeatedly upheld a wide variety of abortion regulations that entail some delay in the abortion but that serve permissible Government purposes," including "parental consent laws, parental notice laws, informed consent laws, and waiting periods, among other regulations." Although he acknowledged that "many Americans—including many Justices and judges—disagree with one or another aspect of the Supreme Court's abortion jurisprudence," the nominee explained that "[a]s a lower court, our job is to follow the law as it is, not as we might wish it to be" and argued that the "three-judge panel here did that to the best of its ability, holding true to the balance struck by the Supreme Court." Judge Kavanaugh viewed the en banc court's decision, in contrast, as "a radical extension of the Supreme Court's abortion jurisprudence" amounting to "a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand."

On June 4, 2018, the Supreme Court unanimously vacated the D.C. Circuit's en banc order, because J.D. had obtained an abortion before the case reached the Supreme Court, thus rendering her claim for injunctive relief moot.

Substantive Due Process Cases Decided Under Glucksberg

Apart from his dissent in Garza , Judge Kavanaugh has authored at least two other potentially notable substantive due process opinions. These cases involved the threshold question of how to determine whether an unenumerated right is fundamental and thus protected under the substantive component of the Due Process Clauses, an issue the Court has debated in recent years. Under the standards set forth in 1997 in Washington v. Glucksberg , in order for a right to be fundamental, it must be "deeply rooted in this Nation's history and tradition." However, in 2015, in Obergefell v. Hodges , the Court indicated that the process of identifying and protecting fundamental rights is not susceptible to one formula and that "[h]istory and tradition guide and discipline this inquiry but do not set its outer boundaries."

In Doe v. District of Columbia , Judge Kavanaugh considered a pre- Obergefell due process challenge to a 2003 District of Columbia policy authorizing surgeries under certain circumstances for intellectually disabled persons in the District's care. The plaintiffs, representing a class of "intellectually disabled persons who live in District of Columbia facilities and receive medical services from the District of Columbia," argued that the 2003 policy violated the procedural due process rights of the class members because it did not require the D.C. agency responsible for their medical care to consider their wishes in the process of deciding whether to authorize surgery. They also raised a substantive due process claim, presumably based on what the district court called their "liberty interest to accept or refuse medical treatment." With respect to the procedural due process claim, Judge Kavanaugh wrote that "accepting the wishes of patients who lack (and have always lacked) the mental capacity to make medical decisions does not make logical sense and would cause erroneous medical decisions—with harmful or even deadly consequences to intellectually disabled persons."

While expressing skepticism as to whether the plaintiffs' "complaint about procedures used by [the agency] can be properly shoehorned into a substantive due process claim," Judge Kavanaugh proceeded to reject that argument as well. Quoting Glucksberg , Judge Kavanaugh reasoned that the "plaintiffs have not shown that consideration of the wishes of a never-competent patient is 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if [the asserted right] were sacrificed.'" Although he emphasized the plaintiffs' lack of evidence to support the historical foundations for recognizing a right to consultation under the circumstances, Judge Kavanaugh added an observation regarding the current legislative environment in which the plaintiffs advanced their due process arguments. Specifically, he remarked that "the breadth of plaintiffs' constitutional claims is extraordinary because no state of which we are aware applies the rule suggested by plaintiffs," intimating the unlikelihood that "all states' laws and practices" regarding medical treatment for intellectually disabled persons who have never attained competence are unconstitutional.

In another case that predated Obergefell, Judge Kavanaugh applied the Glucksberg decision again in Empresa Cubana Exportadora de Alimentos y Productos Varios v. Department of the Treasury . The case concerned a 1998 law that modified an exception to a Cuban asset regulation that had allowed a company called Cubaexport to register and renew the trademark HAVANA CLUB with the U.S. Patent and Trademark Office. The 1998 law prohibited Cubaexport from renewing its trademark when it came due for renewal in 2006. Cubaexport argued, inter alia, that the 1998 law violated the substantive due process doctrine. Writing for two members of a three-judge panel, Judge Kavanaugh rejected Cubaexport's "inflated conception of substantive due process," and cited Glucksberg for the proposition that "[u]nless legislation infringes a fundamental right, judicial scrutiny under the substantive due process doctrine is highly deferential." The nominee concluded that the case did not involve a fundamental right—which Cubaexport apparently did not contest—so the court needed to consider only whether the legislation, including its retroactive application to Cubaexport's previously registered trademark, was rationally related to a legitimate government interest. Judge Kavanaugh held that the 1998 law "easily satisfied" that standard because it was "rationally related to the legitimate government goals of isolating Cuba's Communist government and hastening a transition to democracy in Cuba." In addition, "any unfairness" resulting from retroactive application of the renewal bar to previously registered trademarks was "mitigated—indeed eliminated—by the fact that [the government] has clearly warned that exceptions from trademarks were revocable at any time."

Perhaps the most pointed remarks Judge Kavanaugh has made on substantive due process came in a 2017 lecture at the American Enterprise Institute, where Judge Kavanaugh offered some limited commentary on the Glucksberg decision and its place in substantive due process jurisprudence. He began by noting that the Glucksberg opinion reflected the view of its author, Chief Justice Rehnquist, that "unenumerated rights"—that is, those not specifically listed in the Bill of Rights—"could be recognized by the courts only if the asserted right was rooted in the nation's history and tradition." Judge Kavanaugh then remarked that "even a first-year law student could tell you that the Glucksberg approach to unenumerated rights was not consistent with the [earlier] approach of the abortion cases such as Roe v. Wade in 1973—as well as the 1992 decision reaffirming Roe , known as Planned Parenthood v. Casey ." Judge Kavanaugh did not explicitly question the legal reasoning underpinning the Roe and Casey decisions—though he noted that Chief Justice Rehnquist's views may not have prevailed in Casey due to stare decisis, the judicial doctrine, discussed in more detail above, that emphasizes the importance of adhering to precedent. However, his remarks do suggest that Judge Kavanaugh views the Court's pre- Glucksberg due process decisions as part of a "general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation's history and tradition." In this regard, Judge Kavanaugh sees Glucksberg as "an important precedent, limiting the Court's role in the realm of social policy and helping to ensure that the Court operates more as a court of law and less as an institution of social policy."

Judge Kavanaugh's statements about Glucksberg and judicial restraint echo remarks he made the year before concerning the recognition of unenumerated rights:

I don't think . . . there's some new font [of authority] for courts to go around . . . and create a bunch of new rights that we think ourselves are important. I think we need to stick to what the Supreme Court has articulated is the test for unenumerated rights, which is deeply rooted in history and tradition. Otherwise, courts really will become politicians or political policymaking bodies.

Conclusion

Commentators have questioned whether Judge Kavanaugh's judicial philosophy and practice in the realm of substantive due process may translate into a decision that dramatically reshapes the Court's abortion jurisprudence. The dearth of abortion cases in Judge Kavanaugh's judicial portfolio, as well as the unique posture of the Garza case—in particular, the emergency nature of the proceedings, the government's choice to assume that J.D. could avail herself of constitutional protections, and the narrow issue on which Judge Kavanaugh wrote—provide little basis to discern the nominee's position on whether Roe or Casey was wrongly decided. Even if Judge Kavanaugh would have decided Roe or Casey differently as a matter of first impression, any assessment of his willingness to overrule these decisions if nominated to the Court would need to include an evaluation of the judge's position on the role of stare decisis, including which of the stare decisis factors Judge Kavanaugh might weigh more heavily in assessing whether to uphold or overrule a constitutional decision.

Nonetheless, the nominee has been skeptical of a court discovering new rights within the substantive component of the Due Process Clauses. While he may not have foreclosed Justice Kennedy's vision in Obergefell of a court guided by history and tradition but open to "new insight[s]" into the meaning of liberty, Judge Kavanaugh appears to share Chief Justice Rehnquist's more circumscribed approach to defining the contours of due process rights and protections. More so than Judge Kavanaugh's opinions applying Glucksberg— which could be viewed more narrowly as adherence to binding precedent—the Judge's statements during his 2017 lecture on Chief Justice Rehnquist, combined with his overarching judicial philosophy, suggest that the nominee might endorse Glucksberg 's emphasis on consulting history and tradition before extending constitutional protections to an asserted right. As a result, it appears that Judge Kavanaugh likely views substantive due process more skeptically than the Justice he may succeed.

Takings1536

Relative to Justice Kennedy, who, during his tenure on the Supreme Court, cast several significant votes in eminent domain cases that decided whether and when federal and state governments may take private property for public use, Judge Kavanaugh does not appear to have significantly addressed the merits of a takings claim in a judicial opinion. This is unsurprising, as the D.C. Circuit does not hear many takings claims because the Tucker Act vests the U.S. Court of Federal Claims (CFC) with jurisdiction over such claims when the plaintiff seeks more than $10,000 in compensation from the federal government. With limited exceptions, the CFC's jurisdiction over such claims is exclusive, and appeals from the CFC are to the Federal Circuit, not the D.C. Circuit. While the Fifth Amendment applies to the District of Columbia, there are few takings cases that have arisen against the District during Judge Kavanaugh's time on the court. Of the takings cases that he adjudicated, Judge Kavanaugh has either joined the majority opinion or summarily disposed of the takings issues. As a result, there is currently an insufficient basis to evaluate Judge Kavanaugh's views regarding the scope of the Takings Clause or the extent to which the Takings Clause protects private property rights. Nonetheless, with takings cases presently pending before the Supreme Court, Judge Kavanaugh, if confirmed, will likely have the opportunity to consider the issue. Accordingly, questions concerning his views on the issue could be explored in a confirmation hearing.

Appendix. Judge Kavanaugh by the Numbers