Brett Kavanaugh in Supreme Court 2020s
On Civil Rights:
In the eyes of government, we are just one race here
Chief Justice John Roberts Jr. and Justices Clarence Thomas and Samuel Alito have opposed racial preferences in the past. Justice Brett Kavanaugh's views are more complex. As a lawyer in private practice at Kirkland & Ellis, he worked on an amicus brief
in the Supreme Court case, Rice v. Cayetano. Rice challenged the constitutionality of a rule permitting only native Hawaiians to vote in elections for trustees of the Office of Hawaiian Affairs that allocates benefits to them.
Kavanaugh and his co-counsel argued it was unconstitutional to use race as a voter qualification. In an article in the Wall Street Journal, he wrote that the court should follow a constitutional principle laid out by Justice Antonin Scalia in a case
involving racial preferences in employment. "Under our Constitution there can be no such thing as either a creditor or a debtor race. In the eyes of government, we are just one race here," Scalia wrote.
Source: National Law Journal on 2022 SCOTUS Affirmative Action
Jan 24, 2022
On Energy & Oil:
Global warming is not a blank check for executive action
Kavanaugh was sitting on the D.C. Circuit when the Clean Power Plan litigation came up before the bench in 2016. During those arguments, he said that an emergency like global warming was not a "blank check" for executive action.
He referred to the Clean Air Act as a "thin statute" that "wasn't designed" to address climate change. Kavanaugh has a record of questioning EPA authority on Clean Air Act issues.
Source: GreenWire E&E News on 2021 EPA & climate SCOTUS cases
Nov 3, 2021
On Government Reform:
AZ mail-in restrictions don't violate Voting Rights Act
Arizona voting restrictions challenged as violations of Section 2 of the Voting Rights Act. First, voters casting their votes on Election Day outside their precinct are not counted. Second, mail-in ballots cannot be collected by anyone other than an
election official, a mail carrier, or a voter's family or household member. The court held, 6-3, that these restrictions did not violate the Act nor were they racially discriminatory.Dissenters argued that the Court's narrow reading weakened the law
and disregarded its intent to address disparities in how election laws affect different racial groups. The rule discarding "out of precinct votes" impacted black and Hispanic voters, with Arizona leading the country in discarding such votes.
Restrictions on vote collection makes voting more difficult for Native Americans.
Samuel Alito wrote the opinion of the Court. John Roberts, Neil Gorsuch, Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett concurred.
Source: NPR commentary on 2021 SCOTUS rulings
Jul 1, 2021
On Education:
Schools are limited in regulating student off-campus speech
Summary by OnTheIssues: When then-14-year-old Brandi Levi did not make her school's varsity cheerleading squad, she posted on Snapchat "F--k school f--k softball f--k cheer f--k everything." As a result, she was suspended from the junior
varsity squad for a year. Majority opinion: The Court ruled 8-1 that though there might be circumstances in which off-campus speech might fall under the purview of the school, this did not qualify. It did not involve bullying or
threatening behavior, nor did it cause any disruptions at the school. Written by Breyer; joined by Roberts, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, & Barrett.
Concurring opinion: Alito, joined by Gorsuch, focused on when a school is
acting in loco parentis, agreeing that was not the case here.
Dissenting opinion: Thomas argued that, historically, a school can regulate off-campus speech if it has a tendency to harm the school, faculty, students, or programs.
Source: 2020 SCOTUS rulings: Mahanoy Area School District v. B.L.
Jun 23, 2021
On Health Care:
Individual mandate is constitutional even with $0 tax
The Court's decision in California v. Texas concludes that the plaintiffs trying to undo ObamaCare had no business being in court. The case was brought by Texas officials who object to ObamaCare, centered on the law's individual mandate [which] required
most Americans to either obtain health insurance or pay higher taxes. In 2017, Congress amended ObamaCare to zero out this tax. The Texas plaintiffs claimed that this zeroed-out tax is unconstitutional and also claimed that the entire law must be
declared invalid if the zero dollar tax is stuck down.In a 7-2 ruling, the Court ruled that no one is allowed to bring suit to challenge a provision of law that does nothing: "The IRS can no longer seek a penalty; there is no possible Government
action that is causally connected to the plaintiffs' injury."
SCOTUS outcome:Authored by Breyer; joined by Roberts; Thomas; Sotomayor; Kagan; Kavanaugh; and Barrett. Thomas also wrote a concurring opinion. Alito and Gorsuch dissented.
Source: Reuters on 2021 SCOTUS ruling:ÿ"California v. Texas"
Jun 17, 2021
On Corporations:
Company can challenge onerous IRS reporting requirement
In CIC Services v. Internal Revenue Service, the Court ruled on the scope of the Anti-Injunction Act, a statute which limits lawsuits seeking to block the assessment or collection of a tax. The Court ruled that despite a federal law prohibiting
lawsuits aimed at striking down taxes, not every IRS rule is considered a "tax" entitled to that kind of immunity.KAVANAUGH wrote a concurrence, in which he characterized the
Court's opinion as having "carved out a new exception" to existing case law. "Pre-enforcement suits challenging regulations backed by tax penalties are ordinarily not barred, even though those suits,
if successful, would necessarily preclude the collection or assessment of what the Tax Code refers to as a tax."
Source: Law & Crime blog on 2021 SCOTUS cases: "Unanimous Decisions"
May 17, 2021
On Principles & Values:
Neutral laws may impact religious groups
Barrett's opinion, which Justice Brett Kavanaugh joined, is slightly to the left of Gorsuch's view. Though Barrett agrees with Gorsuch that "if a chorister can sing in a Hollywood studio but not in her church, California's regulations cannot be viewed
as neutral," she concedes that the "record is uncertain" regarding what rules apply to film studios. Significantly, Barrett's opinion also suggests that she does not want to tear down completely the
distinction between cases involving religious discrimination and cases involving universally applicable laws. "It remains unclear whether the singing ban applies across the board
(and thus constitutes a neutral and generally applicable law) or else favors certain sectors (and thus triggers more searching review)," Barrett writes.
Source: Vox.com on 2021 SCOTUS "First opinion"
Feb 6, 2021
On Immigration:
DACA phase-out legally correct under administrative law
The Supreme Court blocked the Trump administration's attempt to end Deferred Action for Childhood Arrivals, an Obama-era program that protects immigrants brought to the US as children from deportation. After Trump came into office, the administration
announced the program had been created "without proper authority" and that DACA would be phased out. The ruling said the administration had failed to provide an adequate reason to justify ending the DACA program.Justice Kavanaugh wrote a separate
dissent praising immigrants, but saying he did not agree with the majority opinion. "They live, go to school, & work here with uncertainty about their futures. Despite many attempts over the last two decades, Congress has not yet enacted legislation to
afford legal status to those immigrants," Kavanaugh wrote. He noted that "the only practical consequence of the Court's decision to remand appears to be some delay" because the decision allows "the Department to relabel and reiterate substance."
Source: CNN on Trump Cabinet / 2020 SCOTUS rulings
Jun 18, 2020
Page last updated: Mar 21, 2022