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Know Yourself, Know Your Supreme Court Justice Nominee


Judge Brett Kavanaugh’s welcome address by President Trump. Image Credit: Dan Scavino Jr., White House Director of Social Media

On June 27th, 2018 current Supreme Court Justice Anthony Kennedy submitted his letter of retirement to President Trump, to go into effect after July 31st. On Monday, July 9th, President Trump announced his 1st nominee for the second Supreme Court seat to be filled during his presidential term: Brett Kavanaugh.

In response, many are eagerly digging through Kavanaugh’s publicly available paper trail to extract the appellate court judge’s takes on hot-button issues. Unfortunately, only one topic, the prospective repeal of Roe v. Wade, is being covered by the mainstream news.

This is a very important issue that will touch many people’s lives, however, the reality is, if approved by Congress, Judge Kavanaugh will sit on the Supreme Court as part of a lifetime appointment. He will make impactful decisions for many decades to come. Therefore, it is important to be aware of his view on a range of topics. Below are his some of his documented rulings on predominant questions in climate (green), health (orange), and technology (blue):

Topic Brief Topic Debate Opinion Kavanaugh’s Stated View
Covering: Air pollution restrictions
In 2012, the Environmental Protection Agency (EPA) called for a reduction in smog emissions, which carries sulfur dioxide and nitrous oxides that are widely known to cause serious public health problems.
The concern arises in that these emissions are prone to drift across state lines and affect people outside the governance of the perpetrating state.
Against Kavanaugh argued the EPA’s imposed restrictions went too far by requiring overly polluting states to reduce their emissions beyond the extra dose wafting over downwind states.
He wrote that the EPA did not give offending states enough time to implement their own reductions plans.
WHITE STALLION ENERGY CENTER LLC v. American Academy of Pediatrics
Covering: EPA policy does not need to consider current costs
This case brought to light the question of whether the EPA was required to consider the monetary costs companies needed to cover in order to comply with their potential, new environmental rules. The majority of the court agreed with the EPA in that the agency did not have to consider the costs. Against “In my view, it is unreasonable for EPA to exclude considerations of costs in determining whether it is ‘appropriate’ to impose significant new regulations on electric utilities,” Kavanaugh wrote.

“To be sure, EPA could conclude that the benefits outweigh the costs. But the problem here is that EPA did not even consider the costs.”

Covering: Limiting the EPA’s reach
In 2015, the EPA announced new regulations limiting carbon dioxide emissions from power plants. The regulations announced each state would have to construct a plan to cut CO2 power plant emissions or the EPA would step in and design a scheme for the state to accomplish the agency’s goal.
The case in question argued the EPA does not wield the power to enforce these consequences.
For Kavanaugh argued that environmental policies should be mandated by Congress, not a government agency.
Cytori Therapetuics Inc. v. FDA
Covering: the FDA has more medical expertise, and therefore say, in medical matters
In 2013, the FDA was in a lawsuit with a medical device manufacturer over the agency’s decision to deny quick approval for their device.
If a newly proposed device is very similar to an already FDA-approved device, the novel device can be fast-tracked to approval. In this case, the FDA ruled the new device was not similar enough to the already-approved device.
For Kavanaugh wrote that courts are “ill equipped to second-guess that kind of agency’s scientific judgment.”

Concerning: ACA-mandated contraception
US law requires most employers to provide health insurance for their employees — including all FDA-approved contraceptives — or pay a significant fine to the government.
The law states that to be exempt from the monetary penalty, religious organizations need to submit a form to their insurer or the federal government. The insurer is required to continue to provide contraceptive coverage to the religious groups’ employees through separate funds provided by the insurer or the government.
Against Kavanaugh wrote that the mandate infringed on the rights of religious organizations. He wrote,
“When the Government forces someone to take an action contrary to his or her sincere religious belief or else suffer a financial penalty, the Government has substantially burdened the individual’s exercise of religion.”
Concerning: Government metadata surveillance
Following Edward Snowden’s revelation of the National Security Agency’s (NSA) massive surveillance operation, numerous lawsuits were filed advocating for privacy rights, protected via the Fourth Amendment.
In a 2013 privacy rights case, a district court judge agreed the NSA’s collection of phone records was likely a violation of the Fourth Amendment. But the case was frozen and Kavanaugh denied requests to rehear the case.
For Kavanaugh’s reasoning was two-fold:

  1. “In my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment,” Kavanaugh wrote. The amendment only bars “unreasonable searches and seizures,” so the government aggregation of data was fair, he argued.
  2. Kavanaugh also asserted the protection of national security surpassed individual rights to privacy.

Concerning: Constitutionality of Net Neutrality

Net neutrality prohibits internet service providers (ISPs) from

  1. speeding up,
  2. slowing down, or
  3. blocking internet traffic based on its source, ownership or destination.

Read more about what net neutrality is and the debate surrounding it here.

Against Kavanaugh’s dissent was two-fold:

  1. He argued that the Federal Communications Commission (FCC) was not clearly granted the authority to make the ruling of net neutrality, and thus overstepped by implementing it.
  2. More importantly, Kavanaugh wrote that restricting the actions of internet service providers amounted to intruding on their “editorial discretion.” Therefore, he argued, the net neutrality rule violated First Amendment protections in that net neutrality blocked ISPs from favoring certain kinds of internet traffic.

Senate Majority Leader Mitch McConnell expects to have Judge Brett Kavanaugh confirmed by the Senate no later than October 1st, 2018. This will likely occur; there needs to be just a simple majority vote result for Republican-aligned Judge Kavanaugh to be confirmed as a Supreme Court justice and Republicans hold the majority in Congress. With the very real likelihood that Judge Brett Kavanaugh will be serving as one of our Supreme Court Justices for rest of our lifetimes, it is immensely important to understand Judge Kavanaugh’s relationship and view of science and the policy currently being crafted around it.

Screen Shot 2018-03-31 at 1.51.09 PM Madelaine Wendzik is a Ph.D. student in the Neuroscience Program at the University of Georgia studying neuroinflammation and immune response in pediatric traumatic brain injury. She enjoys board games, downloading one too many podcasts, and anything to do with white chocolate macadamia nut cookies. You can email her at MWendzik@uga.edu or follow her on twitter @SciPolicyGirl. More from Madelaine Wendzik.

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