Although Brett Kavanaugh’s confirmation as the ninth associate justice of the US Supreme Court is uncertain following Christine Blasey Ford’s recent allegations, many Lexology contributors have already weighed in on what his appointment could mean for the US regulatory landscape.
Political nature of US Supreme Court
The appointment of US Supreme Court judges has long been highly political. Unlike here in the United Kingdom, where Supreme Court judges are appointed by the independent Judicial Appointment Commission, US politicians have a significant role in the appointment of Supreme Court justices, which has led to a partisan system. According to HFW, the rationale behind the United States’ politicised judiciary stems from its role in the legislative process – all statutes and legislation passing through Congress must be approved by the Supreme Court, with justices thus being selected based on their liberal or conservative persuasions.
Nominated by President Trump to replace retiring Justice Anthony Kennedy, Kavanaugh’s appointment is expected to shift the court’s leaning further right. In view of this, Lexology contributors have tried to predict what his appointment could mean for various areas of the law.
Roe v Wade
In an interesting commentary on the Anthem-Cigna antitrust case, Womble Bond Dickinson (US) LLP examined whether Kavanaugh’s dissenting opinion as a DC Circuit judge could shed light on his views on the landmark abortion case Roe v Wade – in particular, whether and to what extent he considers established Supreme Court precedent to be binding or persuasive authority.
Kavanaugh’s views on administrative agency power (particularly his alleged aversion to the so-called ‘Chevron deference’) could – according to Nossaman LLP – have wide-ranging consequences for environmental statutes. Through its examination of his past decisions in this area (eg, Otay Mesa Property LP v Interior), Nossaman concluded that Kavanaugh is likely to interpret the Endangered Species Act narrowly, which would fit his reputation as a ‘textualist’ justice. Hunton Andrews Kurth LLP agreed, speculating that Kavanaugh’s inclination to look for clear congressional authorisation could have significant implications for environmental law, where agencies’ statutory authority to address issues such as climate change can be tenuous.
Winston & Strawn LLP considered how Kavanaugh is already influencing Supreme Court arguments in the securities fraud case Francis Lorenzo v Securities and Exchange Commission. Investment banker Francis Lorenzo and the US Chamber and the Securities Industry and Financial Markets Association have asked the court to overturn the DC Circuit’s 2017 liability ruling against Lorenzo and instead adopt Kavanaugh’s dissenting opinion that Lorenzo did not intend to deceive or defraud.
Attorney-client privilege will likely remain safe, with Squire Patton Boggs discussing Kavanaugh’s role as a staunch defender of the stance taken in the 2014 case In re Kellogg Brown & Root, Inc. On this basis, Squire predict that, if appointed, Kavanaugh will support the broad application of privilege to communications that are not solely legal advice, which should provide relief for companies.
This pro-company approach is less clear when it comes to Kavanaugh’s view on class-action appeals. According to Kilpatrick Townsend & Stockton LLP, although Kavanaugh has tended to side with defendants in such cases, his only notable class-action-specific opinion is his dissenting opinion in Cohen v United States. For Kilpatrick, Kavanaugh’s opinion suggests that he is – at least in part – sceptical of the use of Rule 23 to create the risk of massive class-wide liability.
Employment issues have taken somewhat of a backseat in discussions regarding Kavanaugh’s policies. However, Graydon Head & Ritchey LLP reported that several labour unions have opposed Kavanaugh’s nomination, largely based on his decision in The National Labour Relations Board v CNN America, Inc that the latter was not liable for violating the National Labour Relations Act after 300 technicians lost their jobs and union protections.
With respect to patent law, Workman Nydegger believes that Kavanaugh will be a pro-patent judge, and that his views on Chevron deference may dramatically affect the future of the US Patent and Trademark Office and the influence of the Patent Trial and Appeal Board.
Political leanings aside, Kavanaugh’s gender alone has been enough for some scholars to predict how he will vote on key issues. Kavanaugh’s appointment would retain the six-to-three male-to-female ratio of justices. As pointed out by Constangy Brooks Smith & Prophete LLP, this lack of women’s perspectives, experiences and opinions may have an impact on issues that directly affect women, such as equal pay and federally mandated maternity leave.
As evidenced by the wealth of articles on Lexology, there has been much speculation about what Kavanaugh’s appointment to the Supreme Court could mean for US case law and the regulatory landscape. However, following the recent allegations against him, speculation has now turned towards whether his appointment will happen at all.