If you didn’t know who Brett Kavanaugh was already, chances are you caught sight of the 53-year-old judge hemming and hawing and smirking his way through confirmation hearings to become the newest member of the United States Supreme Court last week. Or maybe you noticed some of the 200-plus people protesting to the point of being arrested in DC. But beyond the headline-grabbing antics, the hearings looked to some like an exercise in empty stagecraft: a chance for Republicans enabling the madness of the Trump presidency to confirm a qualified conservative to the Supreme Court, while the Democrats on the Judiciary Committee got their highlight-reel moments to appease a raging Resistance movement.
That was what happened with the aw-shucks routine put on by Neil Gorsuch last year, and this go-around, there is somehow even less suspense. Kavanaugh will almost certainly be confirmed to replace the court’s nominal swing voter Anthony Kennedy, who announced his retirement this summer. Since the GOP has a majority in the Senate, Republican senators would have to turn on him to block his confirmation, which seems unlikely—even though a recently-unearthed 2003 email suggesting Kavanaugh thought Roe v. Wade might not be “settled law” made it seem even more clear that the pivotal 1973 ruling establishing a woman’s right to an abortion would be in dire jeopardy if and when he’s on the court. (In his confirmation hearings, Kavanaugh did in fact refer to Roe as “settled law,” though the pro-choice folks sending thousands of coat hangers to the office of Maine Senator Susan Collins—a potential swing vote—were likely less than reassured.)
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But you don’t have to be the kind of activist who gets arrested on C-SPAN to have cause for grave alarm at the prospect of Kavanaugh joining four other diehard right-wingers in a majority atop the US judicial system. He’s written key opinions and dissents on a host of topics shaping the world we live in, establishing deeply conservative views on everything from voting rights to net neutrality to immigrants to executive power. That’s to say nothing of his long history of writing and saying things that suggest presidents might be above the law, and fashioning a legal philosophy that seems to leave out entire segments of society.
“He’s a catastrophe for people of color,” Jeff Hauser, executive director of the Revolving Door Project, a good-government group at the left-leaning Center for Economic and Policy Research who has written critically of the potential justice on everything from weed to impeachment, told me.
It’s hard to overstate the stakes here: If confirmed, Kavanaugh will long outlast Trump—and could potentially form part of a right-wing bloc that strikes down progressive legislation pushed by future Democratic presidents and congresses. In addition to the threat he represents on reproductive rights and—in the short-term—the Mueller probe, Kavanaugh would also be likely to haunt efforts at slowing climate change, protecting labor and workers’ rights, and passing gun control bills. The worst-case scenario here is that he turns the court into a far-right stronghold that overrules reforms favored by a majority of the country’s voters for decades.
This is what that might look like.
Trump and the Mueller Investigation
It didn’t take long after Kavanaugh’s nomination for speculation to explode that Trump might have tried to secure some kind of explicit promise he’d protect him in the massive Russia investigation—or just oversight generally—should it reach the Supreme Court. There’s a broad consensus in the legal community that Kavanaugh, who worked on the Ken Starr investigation of Bill Clinton, is particularly high on presidential power and deference to the executive branch. Among other things, he’s argued presidents are essentially too busy to deal with criminal indictments and should be protected from them by new legislation. On the one hand, that suggests he theoretically thinks presidents are vulnerable to indictment as the law stands. But the thrust of his words in a 2009 Minnesota Law Review article—presidents, he argued, ought to be “excused from some of the burdens of ordinary citizenship” like responding to civil and criminal claims—have raised ire on the left, especially given he previously signaled he thought presidents actually could not be indicted, period, at least while in office. After all, Trump is facing ongoing litigation charging he defamed a woman he allegedly sexually harassed, not to mention the Mueller probe.
“Executive privilege is basically a made-up right asserted by presidents of both parties to hide stuff from Congress and the Courts,” Hauser told me. “That could be particularly relevant when, for instance, Congress subpoenas Trump’s tax returns. I don’t think Trump will give up those tax returns unless a larger army takes them physically.”
It should be noted that some scholars in the legal community are cautiously optimistic about the guy when it comes to protecting Mueller—Kavanaugh reportedly expressed a degree of approval for the special counsel’s appointment when meeting privately with senators on Capitol Hill. Noah Feldman, a Harvard legal historian who knows Kavanaugh personally, told me recently that the judge plausibly fits the profile of a “Never Trump” conservative. “If he were confirmed, he would owe Donald Trump zero,” Feldman told me. “This is someone who [for] most of his career was as a Bush conservative.”
But even if there was no explicit deal between the president and Kavanaugh arranging for the former’s protection by the latter, Kavanaugh’s time in the Bush White House—known for its abuses of executive power—and his past suggestion that maybe Nixon shouldn’t have had to turn over the notorious tapes that implicated him have watchdogs worried. (Kavanaugh did praise the decision in question, United States v. Nixon, as “one of the greatest moments in American judicial history” at his confirmation hearings, which is either a reflection of the nuances of his views or else a bit of posturing on a sensitive subject.)
“Kavanaugh was not the safe pick,” Hauser told me of his nomination, arguing the president went with a more difficult judge to confirm because Kavanaugh would be likelier to protect Trump. “It’s extremely difficult to imagine he was chosen for any other reason. His Minnesota Law Review piece was really extreme.”
Climate Change and Planetary Catastrophe
The state of environmental regulation in America is already a disaster, and experts increasingly panicked about pending climate catastrophe think Kavanaugh would make things even worse. His legal history makes him seem like someone who would be incredibly skeptical of efforts to use existing federal agencies and laws to protect the planet. This is important because, for starters, Massachusetts v. Environmental Protection Agency, the key 2007 Supreme Court decision giving the EPA authority to regulate greenhouse gases under the Clean Air Act, was a 5-4 decision.
“He’s willing to admit that climate change is a problem. But he’s said, ‘Leave it to Congress,’ knowing full well that Congress is so deadlocked that it’s not going to do anything about the issue,” Robert Percival, director of the Environmental Law Program at the University of Maryland, told me.
Percival argued Kavanaugh had come up with strange, novel ways to kill environmental regulations, specifically noting a ruling of his killing interstate air pollution regulation was actually overturned by the Supreme Court—and not in a 5-4 vote, but a 6-2 one. So while coal companies enjoy a federal environmental regulatory apparatus run by their own former lobbyist, even a future president and Congress more determined to reverse planetary disaster might find themselves handcuffed by a court with him on it, Percival warned.
“His confirmation to the court would be very bad news for the future,” he told me.
Guns and Gun Control
Like passing new climate regulations, actual legislation reining in gun violence is hard to imagine right now. But even if the political winds blow differently, a Justice Kavanaugh would be a huge obstacle to reform.
“He is clearly on the record expressing the view that it is illegal to restrict access to assault weapons like the one used in Parkland,” Adam Skaggs, chief counsel at the Giffords Law Center to Prevent Gun Violence, told me. “He has made fairly clear that he believes regulating who can carry concealed weapons in public is constitutionally suspect. And he has outlined a view of how courts should approach Second Amendment questions that would call into question a host of the types of laws legislatures in many states have passed after Parkland.”
Whether it’s banning bump stocks to extreme-risk protection orders to keep potential shooters off the street to even laws that keep guns out of the hands of domestic abusers, Kavanaugh’s philosophy suggests he might look skeptically on all of them. According to Skaggs, and as reflected in his 2011 dissent in Heller v. District of Columbia where he cited the centrality of “text, history, and tradition” in deciding gun policy, he’s a classic originalist in at least one respect: He really does seem to think gun laws should fit the environment of the Republic’s founding in the 1780s, when tri-corner hats and muskets were the stuff of life.
“His views are plainly outside the mainstream even of traditional conservative judges,” Skaggs argued. “In angling for a seat on the Supreme Court, he has been among the most enthusiastic of the choir singing from the NRA hymnal. Anyone who is concerned with public safety and gun safety should be absolutely alarmed by the prospect of him casting decisive votes on these issues on the Supreme Court.”
Unions and Workers
The pre-Kavanaugh court has already been notably hostile to unions. In June, a 5-4 decision in Janus v. AFSCME pulled the rug out from under public-sector unions across the country, giving free riders who don’t want to contribute to collective bargaining a green light to sit back and let their coworkers struggle on their behalf. (At the same time, Janus will likely severely weaken the power of unions to bargain.) That came after another 5-4 decision about a month earlier in Epic Systems Corp vs. Lewis saying class-action lawsuits by workers can be banned as a condition of employment. That makes it way easier for bosses to lock in egregious conditions at the time you start, preventing you from seeking redress over anything from withheld pay to sexual harassment.
“If you had to imagine a nightmare term on the Supreme Court for the rights and strength of American workers, this would be it,” Benjamin Sachs, an expert on labor at Harvard Law School, told me, noting Justice Kennedy wasn’t exactly an ally of the labor movement as it stands.
Suffice it to say Brett Kavanaugh is probably on board with all of that and then some.
“I read through the 50-some work-law cases in which Judge Kavanaugh wrote an opinion and came away with the distinct impression that he sees the world through employers’ eyes rather than employees’ eyes,” said Charlotte Garden, a law professor at the University of Seattle.
The timing could not be worse. Forces of the anti-union movement have been encouraged by Janus and other decisions, according to Garden, and are now mounting challenges across the country in hopes of further eroding workers’ ability to advocate for themselves while on the job. “Some of those cases involve what could be an existential threat to some unions in that they call for unions to have to reimburse employees for back dues and fees,” she told me.
Multiple labor experts I canvassed mentioned Kavanaugh’s decision in what’s referred to as the Agriprocessors case, where he basically argued undocumented people aren’t really workers in a dispute that saw a boss use his employees’ legal status to try to kill their union. But Garden also cited the judge’s opinion in a case involving a worker killed by a whale at Seaworld, where his ruling suggested he believes federal labor protections shouldn’t apply to jobs that are highly risky but also desirable. Among other things, Kavanaugh compared the dangers of working with whales to being a baseball player taking fast pitches and doing stunts for movies, and said society should not “paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves.”
“Increasingly employers are figuring out how to force their workers to carry business risks,” Garden told me. “And even in a Democratic administration in which agencies or Congress try to respond to that trend by, for example, forcing employers to characterize their workers as employees or independent contractors, that might be the kind of situation where we see the more conservative members of the Supreme Court take a different view.”
In other words, the way labor law has been heading in this country—and the way we actually work and what jobs look like now and what they might resemble soon—are reasons to be deeply afraid of what making a living might be like in an America where Kavanaugh is a justice. Whether it’s the Janus decision being extended to private-sector unions, new assaults on immigrant workers’ few rights, or some kind of innovative First Amendment claim that workers can’t be exclusively represented by a union, don’t for a second be fooled into thinking the shit economy you’re in couldn’t start to look positively decent in hindsight.
When Sachs summed up the dangers Kavnaugh posed to workers’ rights, he could also have been speaking about the general impact his confirmation might have on young people for years to come.
“Just because it’s terrible doesn’t mean it couldn’t get worse,” he told me.
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