Judicial Opinions of Judge Brett M. Kavanaugh
Released: 2018-07-23T00:00:00

O n July 9, 2018, President 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 succeed Supreme Court Justice Anthony M. Kennedy, who is scheduled to retire from active status on July 31, 2018. Judge Kavanaugh has served as an appellate judge for the D.C. Circuit since his appointment by President George W. Bush on May 30, 2006. He has also sat, by designation, on judicial panels for the U.S. Court of Appeals for the Eighth Circuit (Eighth Circuit), the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit), and the U.S. District Court for the District of Columbia.

During his tenure on the bench, Judge Kavanaugh has adjudicated more than 1,500 cases, almost all while a member of either a three-judge or en banc panel of the D.C. Circuit. The D.C. Circuit considers far fewer cases each year than other federal appellate courts. But in part because of 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. Cases adjudicated by the D.C. Circuit are more likely to concern the review of federal agency action or civil suits involving the federal government than cases adjudicated in other circuits, while the D.C. Circuit docket has a lower percentage of cases involving criminal matters, prisoner petitions, or civil suits between private parties.

Unlike the Supreme Court, which enjoys "almost complete discretion" in selecting its cases, the federal courts of appeals are required to adjudicate many cases as a matter of law and, as a result, tend to hear "many routine cases in which the legal rules are uncontroverted." Arguably indicative of the nature of federal appellate work, the vast majority of cases decided by three-judge panels of federal courts of appeals are issued without a dissenting opinion. However, while the vast majority of cases adjudicated by the D.C. Circuit are decided without a dissenting opinion, perhaps because of the nature of the D.C. Circuit's docket, a greater percentage of the court's decisions draw a dissenting opinion relative to its sister circuits.

This report provides tabular listings of 306 cases in which Judge Kavanaugh authored a majority, concurring, or dissenting opinion. Arguably, these written opinions provide the greatest insight into Judge Kavanaugh's judicial approach, as a judge's vote or decision to join an opinion authored by a colleague may not necessarily represent full agreement with a colleague's views. Accordingly, this report does not include cases in which Judge Kavanaugh sat on a reviewing judicial panel, but is not credited as the author of an opinion. For example, instances where Judge Kavanaugh was part of a panel that issued a per curiam opinion, in which no particular judge was credited as an author, are omitted from this report. This report also does not attempt to identify the various rulings made by circuit panels on procedural issues in the midst of the appeal (e.g., granting a litigator's request for an extension of time to file a brief). Finally, the report does not address subsequent legal proceedings that may have occurred after a cited decision was issued, except to note where Westlaw or Lexis editors have indicated that a decision was subsequently abrogated, affirmed, reversed, or vacated by the Supreme Court or the D.C. Circuit.

The opinions discussed in this report are categorized into three tables: Table 1 identifies 148 opinions authored by Judge Kavanaugh on behalf of a unanimous panel; Table 2 contains 47 controlling opinions authored by Judge Kavanaugh in which one or more panelists wrote a separate opinion; and Table 3 lists 111 cases where Judge Kavanaugh wrote a concurring or dissenting opinion, including cases where Judge Kavanaugh wrote both the majority opinion and a separate concurrence. A concurring opinion is identified as a "concurrence in the judgment"—that is, an opinion where the author agrees with the ultimate conclusion reached by the majority but not the manner in which it was reached—only when the concurrence is expressly labeled as such.

Cases are listed in reverse chronological order based on where the case appears in the Federal Reporter . In each instance, the key ruling or rulings of the case are succinctly described. A glossary of common abbreviations for statutes, agencies, and Supreme Court cases referenced in the tables is attached as an Appendix . Judicial opinions discussed in this report are categorized using the following legal subject areas:

Administrative Law (77 cases) Communications Law (14 cases) Antitrust Law (4 cases) Bankruptcy Law (1 case) Business & Corporate Law (6 cases) Civil Rights Law (24 cases) Contracts Law (7 cases) Criminal Law & Procedure (45 cases) Elections Law (7 cases) Energy & Utilities Law (17 cases) Environmental Law (33 cases) Federal Courts & Civil Procedure (covering matters such as standing, justiciability, civil procedure, legal ethics, and the admission of evidence in noncriminal proceedings) (53 cases) Indian Law (2 cases) Firearms Law (1 case) Freedom of Religion (4 cases) Freedom of Speech (including the right to petition) (13 cases) Food & Drug Law (including agriculture) (7 cases) Government Operations (concerning the structure and functions of executive and legislative branch entities) (18 cases) Healthcare Law (14 cases) Immigration Law (3 cases) Intellectual Property Law (4 cases) International Law (6 cases) Labor & Employment Law (38 cases) Military & Veterans Law (6 cases) National Security (17 cases) Pensions & Benefits Law (6 cases) Privacy & Records (15 cases) Securities Law (7 cases) Tax Law (8 cases) Torts (10 cases) Transportation Law (17 cases) Workers' Compensation & Social Security (5 cases)

Where appropriate, up to three subject areas are identified as primarily relevant to a particular case. The goal of the subject matter listing is to provide those interested in particular issues concerning Judge Kavanaugh a means to identify key judicial opinions he authored in a given subject area. However, the list above is not an exhaustive accounting of all possible legal subjects addressed in Judge Kavanaugh's judicial writings. Moreover, categorization of a case under a particular legal subject area does not necessarily mean other categories are wholly inapplicable. For example, several listed cases that concern challenges by wartime detainees held at the U.S. Naval Station at Guantanamo Bay, Cuba, are solely categorized under the legal subject area of "National Security," though the cases may touch on other issues, such as "Federal Courts & Civil Procedure" (because detainee challenges concern judicial review of executive discretion in wartime matters) or "Administrative Law" (because the cases involve review of determinations made through an administrative process employed by the U.S. military to assess whether a person is properly detained). Accordingly, while the categories used in this report may prove helpful to readers seeking to locate judicial opinions by Judge Kavanaugh concerning certain legal topics, these categories do not necessarily capture the full range of legal issues those opinions address.

While this report identifies and briefly describes opinions authored by Judge Kavanaugh during his tenure on the federal bench, it does not analyze the implications of those opinions or suggest how he might approach legal issues if appointed to the Supreme Court. Those matters will be discussed in a forthcoming CRS report.

Methodology

The cases included in this report were compiled by searching all federal cases in the LexisAdvance legal database for "writtenby(Kavanaugh)." A search was then conducted of all federal cases in the Westlaw legal database using "wb(Kavanaugh)" as a cross-check because editors of different legal databases may vary in how they identify cases. These search results were then compared to the listing of authored opinions submitted by Judge Kavanaugh to the Senate Committee on the Judiciary.

These results were last compared on July 23, 2018. Not every identified result proved relevant. Moreover, in a handful of cases, an opinion authored by Judge Kavanaugh was subsequently republished with minimal, and sometimes only stylistic, changes. In cases where there are little, if any, substantive changes between two versions of a judicial opinion, only the most recent published version is listed. On the other hand, if there is a meaningful substantive difference between the two versions, both are included.

Ultimately, this methodology was used to identify 306 cases in which Judge Kavanaugh is credited authoring an opinion: 301 cases decided by the D.C. Circuit and 5 cases decided on three-judge district court panels (Judge Kavanaugh is not credited as an author of any opinions issued by Eighth or Ninth Circuit panels on which he served).

Appendix. Glossary of Common Abbreviations Used in Tables

APA – Administrative Procedure Act AUMF – 2001 Authorization for Use of Military Force Chevron – Chevron, U.S.A, Inc. v. Nat'l Resources Def. Council 467 U.S. 837 (1984) CAA – Clean Air Act CFPB – Consumer Financial Protection Bureau CIA – Central Intelligence Agency DHS – Department of Homeland Security Dodd-Frank Act – Dodd-Frank Wall Street Reform and Consumer Protection Act DOT – Department of Transportation EPA – Environmental Protection Agency ERISA – Employee Retirement Income Security Act of 1974 FAA – Federal Aviation Administration FBI – Federal Bureau of Investigation FCC – Federal Communications Commission FERC – Federal Energy Regulatory Commission FOIA – Freedom of Information Act HHS – Department of Health and Human Services IRS – Internal Revenue Service NLRA – National Labor Relations Act NLRB – National Labor Relations Board Title VII – Title VII of the Civil Rights Act of 1964