Brett Kavanaugh 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

Can't exclude ALL unlawful non-citizens in census, but SOME

The 6-3 conservative majority court seemed to be willing to let the administration tally some of the illegal population for the 2020 census. Trump appointee Amy Coney Barrett suggested that the Founders intended for all residents to be counted in the Census, so that excluding illegal aliens may not pass the constitutionality test. "A lot of the historical evidence and longstanding practice really cuts against your position," she told an administrative lawyer.

Justice Brett Kavanaugh agreed that the challengers have "advanced forceful constitutional and statutory arguments" against the "categorical exclusion of all unlawful non-citizens," but said he wasn't sure that the government was going to go that far. He further noted that if the Trump administration ultimately chose not to exclude all illegal aliens, new challenges would inevitably arise.

Source: The New American magazine, "Illegal-alien Census Debate" , Dec 1, 2020

No curbside voting during pandemic; keep existing rules

The U.S. Supreme Court in a 5-4 decision blocked a lower court ruling allowing curbside voting in Alabama and waiving some absentee ballot requirements during the COVID-19 pandemic. Conservative justices granted Alabama's request to stay a federal judge's order that would allow local officials to offer curbside voting in the July runoff and loosen absentee ballot requirements in three of the state's large counties.

"Alabama is again able to enforce laws that help ensure the fairness and integrity of our elections," Alabama's Republican Attorney General said. A District Judge issued a preliminary injunction after finding that Alabama's election rules will cause sick or elderly voters to "likely face a painful and difficult choice between exercising their right to vote and safeguarding their health, which could prevent them from casting a vote in upcoming elections." Alabama appealed the decision. The state argued that it would be confusing to change absentee ballot rules.

Source: Time magazine: Concurrence on MERRILL v ALABAMA, No. 19A1063 , Jul 3, 2020

President answers to impeachment, not to criminal charges

During his confirmation hearings, Kavanaugh declined to elaborate on his views on executive power or protections for a president who might face an investigation and subpoena.

When Democratic Sen. Dianne Feinstein of California asked Kavanaugh if a sitting president could be compelled to respond to a subpoena, he declined to offer his views. "I can't give you an answer on that hypothetical question," he said.

In a 2009 Minnesota Law Review article, Kavanaugh had written that "Congress might consider a law exempting a President--while in office--from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel." In the same article, however, he noted, "If the President does something dastardly, the impeachment process is available."

Source: CNN.com on lead-up to SCOTUS Confirmation Hearings , Jul 9, 2018

Federal agencies follow Congress, not make new regulations

Kavanaugh has demonstrated a tendency toward suspicion of, rather than deference to, regulatory agency interpretations of federal laws. "It's all about the statute you write," he emphasized to Sen. Amy Klobuchar (D-MN), noting he would not impose new requirements--on businesses, for example--that Congress had not made explicit.

That view, as Klobuchar noted, can limit regulatory safeguards on the job, environmental rules and consumer protection. [For example], Kavanaugh criticized a Labor Department move to sanction SeaWorld following the drowning of a trainer by an orca whale, declaring that the agency had "stormed headlong into a new regulatory arena."

Overall, his view is that agencies should exercise authority as clearly spelled out in federal statutes and that judges should not, as occurred in the SeaWorld case, defer to agency interpretations that go beyond what's explicit in a law.

Source: CNN.com on lead-up to SCOTUS Confirmation Hearings , Jul 9, 2018

Upholds Supreme Court's ruling on campaign finance limits

Judge Kavanaugh has spent the past dozen years embracing the philosophy of the conservative legal movement as he assembled a record on the powerful federal Court of Appeals for the DC Circuit. On issues as diverse as abortion and gun rights to disputes over national-security policies and business regulations, Kavanaugh emphasized textual limitations while frequently favoring corporations over regulators, and the government over individuals claiming rights violations.

In a 2010 case, Judge Kavanaugh wrote the opinion for a 3 judge panel that upheld limits on contributions to political parties which had been imposed in a 2002 campaign-finance reform law. He emphasized that the Supreme Court had already upheld those limits as consistent with the First Amendment and that the new case was sufficiently similar that "as a lower court, we do not possess the authority to clarify or refine" the Supreme Court's ruling.

Source: N.Y.Times on lead-up to SCOTUS Confirmation Hearing , Jul 10, 2018

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Other Justices on Government Reform: Brett Kavanaugh on other issues:
Samuel Alito(since 2006)
Amy Coney Barrett(since 2020)
Stephen Breyer(since 1994)
Neil Gorsuch(since 2017)
Ketanji Brown Jackson(nominated 2022)
Elena Kagan(since 2010)
Brett Kavanaugh(since 2018)
John Roberts(since 2005)
Sonia Sotomayor(since 2009)
Clarence Thomas(since 1991)

Former Justices:
Merrick Garland(nominated 2016)
Ruth Bader Ginsburg(1993-2020)
Anthony Kennedy(1988-2018)
Antonin Scalia(1986-2016)
John Paul Stevens(1975-2010)
David Souter(1990-2009)
Sandra Day O'Connor(1981-2006)
William Rehnquist(1975-2005)

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Page last updated: Mar 20, 2022