How Would Brett Kavanaugh Rule?

by Timothy Sandefur
July 10, 2018

President Trump last night announced his nomination of Judge Brett Kavanaugh of the D.C. Circuit to replace the retiring U.S. Supreme Court Justice Anthony Kennedy. The choice has been greeted with applause by Republicans, although the choice is not particularly controversial, compared to some of the other names that were under consideration. In fact, relatively little is known about his views on many of the major questions that go before the Supreme Court.

The D.C. Circuit does not, for example, typically address criminal procedure questions—which makes up a large portion of the work that the Supreme Court does. And although he wrote two decisions in important Obamacare cases (one of which, Sissel v. HHS, I litigated), his decisions were on issues that were tangential to the big legal question of Obamacare’s constitutionality. In Seven-Sky v. Holder, he concluded that the plaintiffs challenging Obamacare weren’t allowed to sue because the lawsuit was barred under the Anti-Tax Injunction Act, which forbids courts from halting the collection of taxes. That was just a jurisdictional question, so Judge Kavanaugh didn’t have to rule on the legality of Obamacare itself. And in Sissel, he was one of several judges who wanted to hear the question of whether Obamacare violated the rule that tax laws must originate in the House instead of the Senate. But in the same opinion, he said that he thought Obamacare probably would pass muster if the court did consider that question.

One objection that’s been raised relates to Kavanaugh’s views regarding the President’s authority in the age of the War on Terrorism. Kavanaugh ruled in the 2010 Jones case that police did violate the Fourth Amendment when they used GPS tracking to follow a suspect for a long time wherever he went—although he thought they may have violated the Amendment by attaching a device to the man’s car without his permission. When the Supreme Court heard the case, it agreed with that. But some civil libertarians are concerned about Kavanaugh’s less expansive interpretation of the warrant requirement. And other concerns remain about his willingness to defer to the President in war-related matters.

Still, Kavanaugh is among the better names on President Trump’s list and signals another step toward a court that is more skeptical toward administrative agencies. The D.C. Circuit hears many cases involving such agencies, and Kavanaugh’s criticized precedents that require courts to defer to the decisions of such agencies, particularly the infamous Chevron case, which he has called “nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch,” that has “no basis” in the law. Alongside Justice Gorsuch, he’ll make a strong critic of the unelected agencies that rule such a large portion of our lives.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.