On Monday, Brett Kavanaugh was announced as President Trump’s second Supreme Court nominee. Kavanaugh, a judge on the U.S. Court of Appeals for the D.C. Circuit and Yale Law School graduate who previously served in both Bush administrations, has the potential to shape the direction of the court for decades to come. Penn faculty provide their analyses of the nomination.
This is the most important Supreme Court nomination in at least a generation–among the most important ever since Kennedy was the swing vote on a very divided Court. This is similar to the Bork nomination, but the stakes are even higher. The Democrats are, however, in a much weaker position to oppose the nomination successfully.
If confirmed, a near certainty, Brett Kavanaugh will cement conservative control of the Court, but he will not drive it sharply to the right. He is likely to be more conservative than Anthony Kennedy but still within the bounds of moderate judicial conservatism—more pro-business than a proponent of an activist right-tilted social agenda.
Kavanaugh has said several times he will respect Roe v. Wade as settled precedent. But, he is likely to see many abortion regulations as not-undue burdens on abortion rights.
In nominating Brett Kavanaugh, President Trump has selected a nominee for the Supreme Court with considerable Washington, D.C., legal experience, including extensive judicial experience in administrative law through his service on the D.C. Circuit Court of Appeals. As with Justices Gorsuch and Thomas on the Court, Kavanaugh has expressed strong concerns about what is known as the Chevron doctrine, one of the most prominent Supreme Court precedents related to administrative law. That doctrine calls for courts to defer to government agencies’ reasonable understanding of ambiguous statutory provisions. Both scholars and judges often see the deference to government called for by this doctrine as pivotal to the extent and nature of government regulation of business.
Judge Kavanaugh has worried that, by relying on the Chevron doctrine, judges can too easily defer to government regulators. If Kavanaugh is confirmed, the Court will have another Chevron skeptic on its bench, bringing the future nature or viability of that doctrine into still more question.
If Judge Kavanaugh is confirmed to the Supreme Court, he will shape important issues in health care in the near future, ranging from reproductive rights to the Affordable Care Act. One issue that has been debated since Justice Kennedy’s announcement is whether the Court might overturn Roe v. Wade and end access to abortion altogether.
Although such a result is possible without Kennedy’s vote to preserve it, what is more likely is continued covert erosion of abortion access by allowing states to pass laws with strict limits on abortion timing, procedures, and providers.
The current legal test is that state laws that pose an “undue burden” on women are unconstitutional. In 2016, the Supreme Court struck down a Texas law under this standard, with Kennedy as the deciding vote. Kavanaugh has nodded to this standard in his decisions, but it is likely that much less would rise to the level of an undue burden for the newly-constituted court. This would allow extremely restrictive state laws to stand that in effect undermine the rights protected under Roe v. Wade, even if it is not officially overturned.
The Court could also hear cases in the near future that will affect public funding for Planned Parenthood and access to contraceptive coverage.
Click here for more perspectives from faculty at Penn Law.