Legal Analysis Exposes Kavanaugh's Long History of Siding With Corporate Power Over the Common Good

Bolstering calls for the Senate to block President Donald Trump's deeply unpopular U.S. Supreme Court nominee Brett Kavanaugh, an analysis out Wednesday reveals that Kavanaugh has overwhelmingly sided with corporate power over public interest while serving on the U.S. Court of Appeals for the D.C. Circuit over the past 12 years.

"The most eye-catching conclusion from reviewing Judge Kavanaugh's opinions on the appellate court is the consistency of the outcomes compared to the inconsistency of his reasoning--the overwhelming tendency to reach conclusions favorable to corporations and against the public interest."
--Robert Weissman, Public Citizen

The new report (pdf), authored by Public Citizen president Robert Weissman, found that Kavanaugh ruled against public interest 87 percent of the time for more than 100 split-decision cases involving consumer and regulatory issues and administrative law, environmental protection, worker rights, alleged police or human rights abuses, and antitrust enforcement.

"The most eye-catching conclusion from reviewing Judge Kavanaugh's opinions on the appellate court," said Weissman, "is the consistency of the outcomes compared to the inconsistency of his reasoning--the overwhelming tendency to reach conclusions favorable to corporations and against the public interest."

From analyzing Kavanaugh's decisions, the report identifies five key themes to characterize his judicial record:

1. Kavanaugh is inconsistent on the issue of deference to agency action; he consistently favors corporations.
2. Kavanaugh favors a standard benefiting corporations on the issue of standing.
3. Kavanaugh's record demonstrates that he imposes high bars to citizen access to the courts, but treats corporations differently.
4. Kavanaugh opposes independent agencies.
5. Kavanaugh's record shows him to be highly skeptical of civil rights claims.

The report notes that in the spheres of environmental and labor law, and beyond, "Kavanaugh's opinions demonstrate a very clear and consistent pattern of strong deference to agency decisions challenged by public interest groups or individuals, and no deference--and sometimes hostility--to agency actions challenged by corporations."

In one example the report highlights, "Kavanaugh found it reasonable for the FCC to gather more information before deciding whether to act on a petition requesting emergency alerts be broadcast in languages other than English," even though, as another judge explained in a dissenting opinion, "Hurricane Katrina laid bare the tragic consequences of that gap when people's lives were lost because they could not understand the warnings."

However, the report points out, when cable companies and internet service providers (ISPs) brought cases against the FCC--alleging that certain contract prohibitions and net neutrality protections designed with public interest in mind violated the First Amendment--"Kavanaugh made precisely parallel arguments" in favor of the corporations.

What these latter two opinions "suggest, at minimum, is that his understanding of the First Amendment rights of cable companies and ISPs' and presumably other providers and platforms, may meaningfully constrain the ability of the FCC and other agencies to adopt fair rules of the road, at the potential expense of less powerful market competitors, innovation, and, crucially, the public," the report concludes.

Public Citizen's analysis comes amid national efforts by human and civil rights groups to #StopKavanaugh. Protests and campaigns against the candidate are targeting lawmakers who may be on the fence about his nomination--including Republicans Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska)--while also pressuring Senate Minority Leader Chuck Schumer (D-N.Y.) to keep the Democrats united in opposition.

Schumer on Tuesday renewed concerns among progressives about the upcoming Kavanaugh vote when, as Common Dreams reported, he struck a deal with Senate Majority Leader Mitch McConnell (R-Ky.) to fast-track votes on several of the president's federal court nominees. Despite demands for a postponement, Kavanaugh's confirmation hearings are scheduled to begin Sept. 4.