About

07/10/2018

After Justice Kennedy announced his retirement from the Supreme Court twelve days ago, President Trump took to the podium in a national press conference Monday night to announce the second nomination of his presidency: Brett Kavanaugh of the D.C. Circuit Court of Appeals. Kavanaugh’s nomination was by no means shocking, as he was rumored to be a favorite candidate for the President even before Justice Kennedy’s announcement.

So what would Kavanaugh’s addition to the Supreme Court mean for Americans and the American workforce?

In remarks given during the announcement, Kavanaugh promised to “keep an open mind in every case,” and assured the public that he understands “the importance of equality for all Americans.”[1] Yet it is unclear from Kavanaugh’s track record whether this will ring true, especially given the unavoidable influence of the President’s partisan megaphone and the extreme pressure to be conservatives’ predictable fifth vote on the Court.

Kavanaugh has issued around 300 opinions since his appointment to the D.C. Circuit. His record indicates that he consistently favors the rights of businesses and employers, and is skeptical of government regulations and the powers of government agencies. According to “Judicial Common Space,” one measure of judicial ideology, Kavanaugh sits on the far right of the spectrum, with only Justice Thomas scoring more conservatively.[2]

Pro-business conservatives laud Kavanaugh as a win for their ideals, and rightfully so. For example, in 2016’s Verizon New England v. NLRB, Kavanaugh authored an opinion ultimately holding that employers can require, as a precondition of employment, that workers waive their rights to picket. [3] Additionally, in a dissent authored in 2008, Kavanaugh opined that illegal immigrant workers should not be considered “employees” under the National Labor Relations Act, and should not be entitled to vote in union elections.[4]

Despite consistent support for employers, there are small glimmers of hope contained within his written opinions. In a concurring opinion in the 2017 case Ortiz-Diaz v. United States Department of Housing & Urban Development et al., Kavanaugh disagreed with D.C. Circuit precedent and stated that transferring an employee or denying a request for transfer because of an employee’s protected characteristic(s) “plainly constitutes discrimination” and should be actionable under Title VII.[5] Additionally, in 2013, Kavanaugh wrote a concurring opinion stating that being called the “N word” by a supervisor “suffices by itself to establish a racially hostile work environment.”[6] Yet these flickers of pro-employee rhetoric from Kavanaugh are few and far between.

In short, it is doubtful that, if confirmed, Kavanaugh would fill the unpredictable “swing vote” role of his predecessor Justice Kennedy, and would instead likely toe the line with Justices Gorsuch, Alito, Thomas, and Roberts. We’ve unfortunately seen devastating blows to civil rights and workers’ rights in recent months, with more likely to follow in future terms. With Kavanaugh’s appointment, we will see heightened vigilance by the plaintiff’s bar to protect the basic rights of Americans from predatory corporate interests. Rest assured, despite Kavanaugh’s troubling nomination, Nichols Kaster will continue to zealously protect civil, consumer, and employment rights, regardless of changes in the legal landscape.


By Lindsey Krause, Associate Attorney



[1] Trump Announces Brett Kavanaugh as Supreme Court Nominee: Full Video and Transcript,” The New York Times (Jul. 9, 2018), https://www.nytimes.com/2018/07/09/us/politics/trump-supreme-court-announcement-transcript.html.

[2] See Oliver Roeder et al., “How Brett Kavanaugh Would Change the Supreme Court,” FiveThirtyEight (Jul. 9, 2018, 9:34 p.m.), https://fivethirtyeight.com/features/how-brett-kavanaugh-would-change-the-supreme-court/.

[3] 826 F.3d 480 (D.C. Cir. 2016).

[4] Agri Processor Co., Inc. v. NLRB, 514 F.3d 1, 10-14 (D.C. Cir. 2008).

[5] 867 F.3d 70, 81 (D.C. Cir. 2017)(disagreeing with holding in Steward v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003) and Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999)).