Brett Kavanaugh Supreme Court Nomination: A Nonpartisan Guide

Judge Brett Kavanaugh Headshot
Judge Brett Kavanaugh

If the Senate confirms Judge Brett Kavanaugh as a Supreme Court Justice, how could he change U.S. laws?

Nominated by President Trump to replace frequent swing vote Justice Anthony Kennedy, the 53-year-old Kavanaugh could have a profound effect on our nation’s legal system for as long as Kennedy’s 30 years on the Court.

  • We know Kavanaugh’s legal views on some key issues likely to come before the Court.
  • We know both supporters and opponents consider Kavanaugh as conservative as Justice Neil Gorsuch, and know how Gorsuch has ruled since Trump appointed him in the wake of Senate Majority Leader Mitch McConnell’s refusal to give Obama nominee Merrick Garland a hearing.
  • We know of earlier key decisions that Kavanaugh could reverse or change if confirmed.

If you believe this Supreme Court appointment matters, contact your Senator here to express your support or opposition. And vote in November, as your vote may well impact future judicial nominations.

Selected Positions of Judge Kavanaugh

  • Abortion: In 2017, Kavanaugh argued in a dissenting opinion against allowing an undocumented teenager at a Texas detention center to have an abortion.
  • Contraception and Employee/Employer Rights: Kavanaugh wrote in a dissent that Obamacare’s requirement that employers cover contraception in their employees’ health-insurance plans violated religious liberty protections.
  • Environmental Regulation: Kavanaugh has often judged environmental laws to be illegal restrictions on business. For example, Kavanaugh ruled that an Obama-era regulation limiting emissions from power plants was illegal and that the government must consider the costs to businesses when making environmental health regulations.
  • Gun Regulation: Kavanaugh believes the Second Amendment prohibits the government from banning many specific types of guns, like semiautomatic rifles and weapons with high-capacity magazines.
  • Health Care: Kavanaugh dissented from the D.C. Circuit’s rejection of major health insurer Anthem’s proposed $54 billion acquisition of Cigna Corp. The Court’s majority upheld a trial judge’s decision to block the deal on the grounds that it would substantially reduce competition. Kavanaugh said the Anthem-Cigna merger should be approved because it would save consumers money.
  • Presidential Power: In a 2009 law review article, Kavanaugh argued that Congress should pass a law to forbid the questioning of a sitting president in a criminal investigation and to prohibit criminal prosecutions or civil suits against sitting presidents, because such investigations, prosecutions or suits interfere with presidential duties.
  • Wall Street Regulation: In a dissent, Kavanaugh, argued that the Consumer Protection Bureau—the agency created to regulate Wall Street after the 2008 financial crisis—was unconstitutional.

Impact of Justice Neil Gorsuch, President Trump’s Previous Supreme Court Pick

If confirmed to the Court, Kavanaugh would likely decide cases similarly to President’s Trump nominee, Neil Gorsuch. The Court decided these cases 5-4, with Gorsuch casting a deciding vote:

Abortion/Contraceptives:

  • National Institute of Family and Life Advocates v. Becerra. The Court ruled that it was an unconstitutional restriction on speech for California to require “crisis pregnancy centers” that counsel women against abortion to display written information about abortion access and to disclose that they lack licensed medical providers, so are not actual medical facilities.

Election Gerrymandering:

  • Abbott v. Perez. Reversing a lower court, the Court upheld all but one of 11 Texas Congressional districts that plaintiffs accused of embodying racially-based gerrymandering, and refused to overturn heavily gerrymandered Congressional districts in Maryland and Wisconsin. Justice Gorsuch argued that the Voting Rights Act doesn’t apply to redistricting.

Travel Ban

  • Trump v. Hawaii. The Court ruled that the third version of President Trump’s Travel Ban was constitutional. The ban prohibited travel from Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.

Unions

  • Janus v. AFSCME. Overturning earlier precedents, the Court ruled that mandatory public-sector union fees were unconstitutional. This now makes paying any public employee union dues entirely voluntary, while requiring unions to represent all members, including those who choose not to pay dues—a major blow to the economic base of these unions.

Voting Rights

  • Husted v. A. Philip Randolph Institute. The Court ruled that states could purge voters from the voter rolls if they fail to vote within 2 years and ignore or don’t receive mailed notices asking them to confirm they’re still living at their registered address. Studies have found such approaches disproportionately affect minority voters and other voters who frequently move.

Important Supreme Court Decisions that Kavanaugh Could Reverse or Change

Affirmative Action

  • Fisher v. University of Texas (2016) [5-3]. The Court ruled that it was constitutional to use race as one of several factors in deciding which students to admit to the University of Texas.

Abortion

  • Roe v. Wade (1973) [7-2]. The Court ruled that the Constitution protects the right to an abortion as part of a fundamental right to personal privacy, while allowing states to place limited restrictions on abortions to protect maternal health and to protect the “potential life” of the fetus after it was viable. [Judge Kavanaugh has called Justice William Rehnquist, one of the two dissenting Justice, his “first judicial role model”]

Campaign Finance

  • Citizens United v. FEC (2010) [5-4]. The Court ruled that limitations on independent political spending by unions and corporations are unconstitutional. This furthered the creation of “superPACs,” which can accept unlimited money from donors to support a candidate.

Climate Change

  • Massachusetts v. EPA (2007) [5-4]. The Court ruled that the Clean Air Act (1970) requires the EPA to regulate greenhouse gases if they pose a threat to human health.

LGBTQ Rights

  • Obergefell v. Hodges (2015) [5-4]. The Court ruled that states cannot prohibit same-sex couples from marrying.

Obamacare

  • National Federation of Independent Businesses v. Sebelius (2012) [5-4]. The Court ruled that Obamacare’s tax on individuals who did not purchase insurance was constitutional, while letting states opt out of expanding federally covered Medicaid to additional low-income citizens, without threat of losing government funding. Here’s a summary of how Kavanaugh’s previous opinions might reflect likely decisions in this area

Voting Rights

  • Arizona v. Arizona Independent Redistricting Commission (2015) (5-4). The Court held that it is constitutional for voters of a state to vote to create a bipartisan commission to draw congressional districts to combat partisan redistricting.