Supreme Court nominee Kavanaugh on the major issues
Author: Melissa Quinn, Washington Examiner - July 10, 2018 - Updated: July 26, 2018
President Donald Trump’s nomination Monday of Judge Brett Kavanaugh to the U.S. Supreme Court has cast a spotlight on his judicial record, with Kavanaugh’s supporters and detractors looking to his writings to glean insights into how he will rule as a Supreme Court justice.
Kavanaugh has served on the U.S. Court of Appeals for the District of Columbia Circuit since 2006. With nearly 300 opinions authored through his 12 years on the nation’s second most-powerful court, senators have a lengthy record to draw from as they weigh Kavanaugh’s nomination.
Here is how Kavanaugh has ruled on major issues:
The future of abortion rights has already become a flashpoint in the fight over Trump’s nominee to the Supreme Court, as Senate Democrats are raising concerns about the future of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.
Kavanaugh is likely to be pressed during his confirmation hearing about his position on Roe, though he did address the landmark decision in 2006, when he appeared before the Senate Judiciary Committee after his nomination to the D.C. Circuit.
“If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully,” he said at the time. “That would be binding precedent of the court. It has been decided by the Supreme Court.”
Kavanaugh said he did not think it “appropriate for me to give a personal view on that case.”
Kavanaugh did provide a window into how he may rule in cases involving abortion last year, when he dissented from a ruling from the D.C. Circuit in a case involving an illegal immigrant teenager seeking an abortion.
The judge chided the majority in his dissent, writing its opinion was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”
The future of Obamacare is a cornerstone of Democrats’ opposition to Kavanaugh, as they claim a Supreme Court with five conservative justices could dismantle the law and take away protections for people with pre-existing conditions.
While a judge on the D.C. Circuit, Kavanaugh issued two rulings involving the healthcare law that gave some conservatives pause in the lead-up to Trump’s announcement.
In the first case in 2011, Kavanaugh dissented in the case on jurisdictional grounds, writing the 1867 Tax Anti-Injunction Act precluded the D.C. Circuit Court from considering the case at that time.
Some conservatives believe it was Kavanaugh’s decision in 2011 that effectively provided the “roadmap to save Obamacare.”
In the second involving Obamacare, from 2015, Kavanaugh wrote that Obamacare complied with the Constitution’s Origination Clause but disagreed with the majority’s reasoning.
Kavanaugh’s 2015 concurrence in a case involving the National Security Agency has raised concerns among privacy advocates.
In his opinion, Kavanaugh wrote he believed the NSA’s warrantless collection of phone metadata, revealed by whistleblower Edward Snowden, “is entirely consistent with the Fourth Amendment.”
Kavanaugh said he believed the metadata collection program qualified as “reasonable under the Supreme Court’s case law” and served a “critically important special need—preventing terrorist attacks on the United States.”
“In my view, that critical national security need outweighs the impact on privacy occasioned by this program,” he wrote.
In 2011, Kavanaugh dissented in a case challenging a D.C. law that banned possession of most semi-automatic rifles and required registration of all firearms.
The D.C. Circuit upheld the measure, but Kavanaugh said he believed the ban and registration requirement were unconstitutional.
Citing the 2008 Supreme Court case Heller v. District of Columbia, Kavanaugh wrote that “handguns — the vast majority of which today are semi-automatic — are constitutionally protected.”
“There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles,” he wrote. “Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses.”
Kavanaugh further noted that semi-automatic handguns are found to be used in crimes more often than semi-automatic rifles.
In a dissent to the majority’s decision in a 2015 case involving religious organizations challenging Obamacare’s contraception mandate, Kavanaugh said he would have ruled in favor of the religious groups.
“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. So it is in this case,” Kavanaugh wrote.
Citing the Supreme Court’s decision in the case Burwell v. Hobby Lobby Stores, Kavanaugh wrote the “regulations substantially burden the religious organizations’ exercise of religion because the regulations require the organizations to take an action contrary to their sincere religious beliefs.”
Agency power and separation of powers
In a 2017 dissent in a case challenging the Federal Communications Commission’s net neutrality rule, implemented under the Obama administration, Kavanaugh wrote the Internet measure was “unlawful.”
Kavanaugh said in his dissent the FCC lacked the congressional authorization necessary to issue the net neutrality rule. He also said the rule violates the First Amendment.
“The FCC adopted the net neutrality rule because the agency believed the rule to be wise policy and because Congress would not pass it,” Kavanaugh wrote. “The net neutrality rule might be wise policy. But even assuming that the net neutrality rule is wise policy, congressional inaction does not license the Executive Branch to take matters into its own hands. Far from it.”
“Under our system of separation of powers, an agency may act only pursuant to statutory authority and may not exceed that authority. For major rules, moreover, the agency must have clear congressional authorization,” he continued. “The net neutrality rule is a major rule. But Congress has not clearly authorized the FCC to issue that rule.”
Kavanaugh further questioned the power granted to executive branch agencies in a case involving the Consumer Financial Protection Bureau.
In 2016, Kavanaugh was part of a three-judge panel that ruled the CFPB was “unconstitutionally structured” and had to be reorganized. Writing for the majority, the judge said the bureau’s structure is a “gross departure from settled historical practice.”
The full D.C. Circuit, though, reversed the panel’s ruling earlier this year and said the structure was constitutional.
In his dissent to this year’s ruling, Kavanaugh warned the director of the CFPB, an independent agency, “possesses more unilateral authority” than any other commissioner or board member within the federal government.
“Indeed, other than the president, the Director enjoys more unilateral authority than any other official in any of the three branches of the U.S. Government,” Kavanaugh wrote. “That combination–power that is massive in scope, concentrated in a single person, and unaccountable to the president — triggers the important constitutional question at issue in this case.”