Brett Kavanaugh

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Brett Kavanaugh
Image of Brett Kavanaugh

Nonpartisan

Supreme Court of the United States
Tenure

2018 - Present

Years in position

6

Prior offices
United States Court of Appeals for the District of Columbia Circuit

Education

Bachelor's

Yale, 1987

Law

Yale Law, 1990

Personal
Birthplace
District of Columbia

Brett Kavanaugh is an associate justice of the Supreme Court of the United States. President Donald Trump (R) nominated him to the Court on July 9, 2018, to fill the seat left vacant by Anthony Kennedy. The Senate confirmed Kavanaugh in a 50-48 vote, and he was sworn into office on October 6, 2018.[1]

Kavanaugh was born in Washington, D.C., in 1965.[2] He received a bachelor’s degree in history from Yale University in 1987 and a law degree from Yale Law School in 1990.[3]

In 1993, Kavanaugh began to clerk for Supreme Court Justice Anthony Kennedy.[3] He worked in the office of U.S. Solicitor General Kenneth Starr from 1994 to 1998 and was a primary author of the Starr Report on potentially impeachable acts by President Bill Clinton (D).[4] During this time, he also worked for private law firm Kirkland & Ellis.[3] While working in private practice, Kavanaugh worked with President George W. Bush's (R) legal team in Bush v. Gore.[5]

Kavanaugh worked as counsel to Bush from 2001 to 2006. Bush nominated Kavanaugh to the United States Court of Appeals for the District of Columbia Circuit in 2003 and again in 2005, but the Senate did not vote on the nominations. Bush again nominated Kavanaugh in 2006, and the Senate confirmed him in May of that year.[6][3][7]

During his U.S. Supreme Court nomination hearings, Kavanaugh responded to allegations of sexual assault, calling the allegations "a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election." Kavanaugh's comments were in response to Palo Alto University psychology professor Dr. Christine Blasey Ford and two other women who accused Kavanaugh of assaulting them during the 1980s.[8][9] On September 28, 2018, the Senate Judiciary Committee voted 11-10 along party lines to report Kavanaugh’s nomination to the full Senate for a vote. The Senate voted 51-49 to end debate on Kavanaugh’s nomination on October 5, 2018.[10] Click here to read more statements from Kavanaugh's nomination hearings.

Describing his judicial philosophy, Kavanaugh said justices should "begin with the constitutional text and the original understanding, which are essential to proper interpretation of our enduring Constitution."[11] He said, "As I see it, the Constitution is primarily a document of majestic specificity, and those specific words have meaning, which absent constitutional amendment continue to bind us as judges, legislators, and executive officials," and that "changes to the constitutional laws are to be made by the people through the amendment process and, where appropriate, through the legislative process, not by the courts snatching that constitutional or legislative authority for themselves."[12]

As a circuit judge, Kavanaugh’s notable opinions include his dissenting opinion in Garza v. Hargan on abortion and his concurring opinion in Klayman v. Obama on government data collection. While on the U.S. Supreme Court, Kavanaugh's notable opinions included McKinney v. Arizona, in which Kavanaugh held that a state appellate court could reweigh aggravating or mitigating circumstances in cases concerning the death penalty, and Barton v. Barr, in which he held that a lawfully admitted permanent resident not seeking admission to the United States can be "render[ed] ... inadmissible." Kavanaugh also joined the 6-3 majority and authored a concurring opinion in Dobbs v. Jackson Women’s Health Organization, holding that the U.S. Constitution did not provide a right to abortion.

Professional career

Kavanaugh was a clerk to former Supreme Court Justice Anthony Kennedy, Judge Alex Kozinski of the Ninth Circuit, and Judge Walter Stapleton of the Third Circuit. He also worked on a one-year fellowship in the Office of the Solicitor General of the United States under Kenneth Starr. During that time, he worked on the Whitewater Investigation.

Kavanaugh was also a partner at the law firm of Kirkland & Ellis and served as an associate counsel in the Office of Independent Counsel.[14]

After George W. Bush (R) was elected as president, Kavanaugh was senior associate counsel and associate counsel to the president and then served as assistant to the president and staff secretary. Kavanaugh was serving in this role when Bush nominated him to the D.C. Circuit, and he was sworn in June 1, 2006.

Early life and education

Born in Washington, D.C., Kavanaugh attended Georgetown Preparatory School. He graduated from Yale College with his bachelor's degree in 1987 and from Yale Law School with his J.D. in 1990.[13]

Approach to the law

In a 2017 speech before the American Enterprise Institute on former Chief Justice William Rehnquist, Kavanaugh said, "[a]s I see it, the Constitution is primarily a document of majestic specificity, and those specific words have meaning. Absent constitutional amendment, those words continue to bind us as judges, legislators, and executive officials."[15]

Oyez, a law project created by Cornell’s Legal Information Institute, Justia, and Chicago-Kent College of Law, identified Kavanaugh as a member of the court's conservative bloc. It said that while on the D.C. Circuit, Kavanaugh "predictably established a conservative track record on a range of hot-button issues."[16]

At SCOTUSBlog, Adam Feldman wrote in July 2020 that "Although conservatives might have envisioned Kavanaugh’s arrival at the court – replacing the more moderate Kennedy – as likely to solidify a strong right wing on the court, this has not been clearly the case. [John] Roberts and Kavanaugh have both been frequent members of the court’s majority in each of the past two terms, with Roberts in the majority appreciably more this term (97%) than last (85%), and Kavanaugh at 93% this term compared to 88% last term."[17]

Martin-Quinn score

Kavanaugh's Martin-Quinn score following the 2023-2024 term was 0.53, making him the fifth-most conservative justice on the court at that time. Martin-Quinn scores were developed by political scientists Andrew Martin and Kevin Quinn from the University of Michigan, and measure the justices of the Supreme Court along an ideological continuum. The further from zero on the scale, the more conservative (>0) or liberal (<0) the justice. The chart below details every justice's Martin-Quinn score for the 2023-2024 term. These are preliminary scores provided by Kevin Quinn that may differ slightly from the final version of the scores that Martin and Quinn will make publicly available at a later date.

Video discussion

Kavanaugh spoke at The Heritage Foundation in October 2017 about his White House experience, life as a federal judge, and his approach to the Constitution. The video of that event is embedded below.

Views on the administrative state

Separation of powers and Chevron deference

The New Civil Liberties Alliance (NCLA), a public interest law firm that, according to its website, aims at protecting what it calls "constitutional liberties from systemic threats, primarily the administrative state," published an assessment of potential replacements for Justice Anthony Kennedy based on how each of them approached questions about the administrative state.[18][19]

Its assessment held that Kavanaugh would oppose attempts by administrative agencies to consolidate legislative, executive and judicial powers into the same hands.[18] Kavanaugh had raised concerns about potential conflicts between the operations of the administrative state and the principle of separation of powers:[18]

“
In his 12 years sitting on the D.C. Circuit Court of Appeals, Kavanaugh has developed a consistent, albeit nuanced, approach to adjudicating matters related to the administrative state. Kavanaugh believes agencies cannot regulate outside the boundaries of their statutory authority under any circumstance. Independent agencies pose significant constitutional challenges—Judge Kavanaugh has described them as a “headless fourth branch of the U.S. Government.” Kavanaugh has warned that since independent agencies exercise “massive power [in] the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of checks and balances.” Courts should be wary of regulation adopted by independent agencies because there is a problem of accountability, given the President’s inability to supervise their activities. Kavanaugh has suggested that the judiciary is at least partly to blame for the growing concentration of power in independent agencies. Courts have served as enablers to Congress’ unconstitutional transfer of its legislative authority to the executive branch.[20] 		”

Kavanaugh had a record of examining the practice of Chevron deference, an administrative law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer:[18]

“

Judge Kavanaugh notes that “ambiguity-dependent canons” such as Chevron raise particular concern because “the doctrine is so indeterminate—and thus can be antithetical to the neutral, impartial rule of law—because of the initial clarity versus ambiguity decision.” He has also expressed concern with Chevron because the doctrine “has no basis in the Administrative Procedure Act.” Because Chevron is “an atextual invention by courts,” Kavanaugh asserts that Chevron deference “is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.”

Moreover, Judge Kavanaugh’s experience in the White House has led him to observe additional practical political problems with Chevron. Chevron encourages the Executive Branch—regardless of the person or party in control—to be “extremely aggressive” in trying to advance policy through agency action. Kavanaugh sees the Supreme Court’s King v. Burwell decision as a limitation on Chevron’s deference regime though, removing from its ambit the class of cases that pose “question[s] of deep economic and political significance.” To Kavanaugh, Burwell begs the question: if the major rules doctrine requires a court not to apply Chevron, why should Chevron apply to cases involving less major questions? [...]

Judge Kavanaugh has not been a crusader looking for an excuse to overturn Chevron on the D.C. Circuit. In fact, he has said that applying “Chevron makes a lot of sense in certain circumstances.” Kavanaugh believes that when “Congress delegates the decision to an executive branch agency that makes the policy decision … that the courts should stay out of it for the most part.” His principal concern with Chevron is not that courts should never defer to agencies, it is that the doctrine is often incorrectly applied to defer to agencies in circumstances that have little to do with the reasonableness of agencies’ expressly delegated policy decisions.[20]

”

Auer deference

Kavanaugh discussed his opposition to Auer deference during a keynote address at George Mason University Law School in June 2016. His remarks featured a summary of former Supreme Court Justice Antonin Scalia's dissent in Decker v. Northwest Environmental Defense Center, which argued against Auer deference on the grounds that it violates the separation of powers. Kavanaugh himself went on to predict that Auer deference would eventually be overruled:[21]

“ Decker, as [Justice Scalia] explained, Auer violates a fundamental principle of separation of powers: that the power to write a law and the power to interpret it cannot rest in the same hands. Justice Scalia pointedly noted that Auer was not a logical corollary to Chevron, but a dangerous permission slip for the arrogation of power. In the end Justice Scalia said that Auer ‘contravenes one of the great rules of separation of powers, he who writes a law must not adjudge its violation.’ On the law, Justice Scalia explained that Auer is one big, unexplained, unjustified ipse dixit, and there could be no doubt, he pointed out that it has huge practical consequences for individual liberty when the law writer is also the law interpreter. In short, I predict that Auer will someday be overruled and that Justice Scalia's dissent in Decker will be the law of the land.[20] ”

Judicial nominations and appointments

United States Supreme Court (2018 - present)

See also: Nomination of Brett Kavanaugh to the U.S. Supreme Court
See also: Supreme Court vacancy, 2018: An overview
Nomination Tracker
Fedbadgesmall.png
Nominee Information
Name: Brett M. Kavanaugh
Court: Supreme Court of the United States
Progress
Confirmed 88 days after nomination.
ApprovedANominated: July 10, 2018
ApprovedAABA Rating: Unanimously Well Qualified
Questionnaire: Questionnaire
ApprovedAHearing: September 4-7, 2018, September 27, 2018
QFRs: (Hover over QFRs to read more)
ApprovedAReported: September 28, 2018 
ApprovedAConfirmed: October 6, 2018
ApprovedAVote: 50-48

On July 9, President Donald Trump nominated Brett Kavanaugh to succeed Associate Justice Anthony Kennedy on the U.S. Supreme Court. Trump said regarding the nomination:

“ Judge Kavanaugh has impeccable credentials, unsurpassed qualifications, and a proven commitment to equal justice under the law. A graduate of Yale College and Yale Law school, Judge Kavanaugh currently teaches at Harvard, Yale, and Georgetown. Throughout legal circles, he is considered a judge’s judge, a true thought leader among his peers. He is a brilliant jurist with a clear and effective writing style, universally regarded as one of the finest and sharpest legal minds of our time. And just like justice Gorsuch, he excelled as a clerk for Justice Kennedy.[22][20] ”


The American Bar Association rated Kavanaugh Unanimously Well Qualified for the nomination.[23] The Senate Judiciary Committee held hearings on Kavanaugh's nomination from September 4 to September 7 and again September 27.[24] Click here for more information about the hearings.

The U.S. Senate confirmed Kavanaugh's nomination October 6 on a recorded vote of 50-48-1.[24] Click here for more information about Kavanaugh's nomination and confirmation.

Kavanaugh stopped hearing cases or issuing opinions on the D.C. Circuit while his confirmation was pending.[25]

On June 27, 2018, Justice Anthony Kennedy announced he was retiring from the U.S. Supreme Court effective July 31, 2018. In an official release, Kennedy cited a desire to spend more time with his family as the reason for his retirement.[26] Kennedy was considered by many to be the court's swing vote, often casting the deciding vote between the court's more conservative and liberal members.

Remarks in response to nomination

Kavanaugh issued the statement below after President Trump announced his nomination on July 9, 2018.[27]

Mr. President, thank you. Throughout this process, I have witnessed firsthand your appreciation for the vital role of the American judiciary. No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination. Mr. President, I am grateful to you and I am humbled by your confidence in me. Thirty years ago, President Reagan nominated Anthony Kennedy to the Supreme Court. The framers established that the constitution is designed to secure the blessings of liberty. Justice Kennedy devoted his career to securing liberty. I am deeply honored to be nominated to fill his seat on the Supreme Court.

My mom and dad are here. I am their only child. When people ask what it’s like to be an only child, I say it depends on who your parents are. I was lucky. My mom was a teacher. In the 1960's and 70's, she taught history at two largely African-American public high schools in Washington DC. – McKinley Tech and H.D. Woodson. Her example taught me the importance of equality for all Americans. My mom was a trailblazer. When I was 10, she went to law school and became a prosecutor. My introduction to law came at our dinner table when she practiced her closing arguments. Her trademark line was, “use your common sense, what rings true, what rings false.” That’s good advice for a juror and for a son. One of the few women prosecutors at that time, she overcame barriers and became a trial judge. The president introduced me tonight as Judge Kavanaugh. But to me, that title will always belong to my mom. My dad went to law school at night while working full-time. He has an unparalleled work ethic and has passed down to me his passion for playing, and watching, sports. I love him dearly.

The motto of my Jesuit high school was, “Men for Others.” I’ve tried to live that creed. I spent my career in public service from the executive branch in the White House to the U.S. court of appeals for the D.C. circuit. I’ve served with 17 other judges, each of them, a colleague and a friend. My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written and a judge must interpret the constitution as written, informed by history and tradition, and precedent.

For the past 11 years, I’ve taught hundreds of students, primarily at Harvard law school. I teach that the Constitution’s separation of powers protects individual liberty and I remain grateful to the dean who hired me – Justice Elena Kagan. As a judge, I hire four law clerks each year. I look for the best. My law clerks come from diverse backgrounds and points of view. I am proud that a majority of my law clerks have been women. I am part of the vibrant Catholic community in the D.C. area. The members of that community disagree about many things, but we are united by a commitment to serve. Father John Enzler is here. Forty years ago, I was an altar boy for Father John. These days, I help him serve meals to the homeless at Catholic charities.

I have two spirited daughters. Margaret and Liza. Margaret loves sports and she loves to read. Liza loves sports and she loves to talk. I have tried to create bonds with my daughters like my dad created with me. For the past seven years, I have coached my daughter’s basketball teams. The girls on the team call me Coach K. I am proud of our Blessed Sacrament team that just won the city championship.

My daughters and I also go to lots of games. Our favorite memory was going to the historic Notre Dame-UConn women's basketball game at this year's Final Four. Unforgettable. My wife Ashley is a west Texan, a graduate of Abilene Cooper public high school and the University of Texas. She is now the town manager of our community. We met in 2001 when we both worked in the White House. Our first date was on September 10, 2001. The next morning, I was a few steps behind her as the secret service shouted at all of us to sprint out the front gates of the White House because there was an inbound plane. In the difficult weeks that followed, Ashley was a source of strength for President Bush and for everyone in this building. Through bad days and so many better days, since then, she has been a great wife and inspiring mom. I thank God every day for my family.

Tomorrow I begin meeting with members of the Senate which plays an essential role in this process. I will tell each Senator that I revere the constitution. I believe that an independent judiciary is the crown jewel of our constitutional republic. If confirmed by the Senate, I will keep an open mind in every case and I will always strive to preserve the constitution of the United States and the American rule of law. Thank you, Mr. President.

District of Columbia Court of Appeals (2006-2018)

On the recommendation of the Congressional Delegation for the District of Columbia, President George W. Bush (R) nominated Kavanaugh to the United States Court of Appeals for the District of Columbia Circuit on February 25, 2006, to a seat vacated by Laurence Silberman as Silberman assumed senior status. The U.S. Senate confirmed Kavanaugh by a vote of 57-36 on May 26, 2006. He received commission on May 29. Fifty-three Republicans and four Democrats voted "yea," and seven members did not vote. Of the Democrats voting in favor, only Tom Carper (Del.) was still in the Senate as of July 9, 2018.[28]

Click here to read the transcript of Kavanaugh's 2006 confirmation hearings.

Supreme Court statistics

Opinions by year

Below is a table of the number of opinions, concurrences, and dissents that Kavanaugh has issued since joining the Supreme Court according to the annual Stat Pack produced by the website SCOTUSBlog. This information is updated annually at the end of each term.[29] Information for the 2022 term is from a dataset provided by Dr. Adam Feldman, author of Empirical SCOTUS. Data for the 2022-2023 term does not include concurrences and dissents in part. Information for the 2023-2024 term is from the Empirical SCOTUS 2023 Stat Review.

Opinions written by year, Brett Kavanaugh
2018-2019 2019-2020 2020-2021 2021-2022 2022-2023 2023-2024
Opinions 7 6 6 5 7 6
Concurrences 5 5 7 8 6 7
Dissents 2 3 2 1 0 3
Totals 14 14 15 14 13 16

Justice agreement

In the 2023-2024 term, Kavanaugh had the highest agreement rate with John Roberts. Kavanaugh had the lowest agreement rate with Sonia Sotomayor and Elena Kagan.[30] In the 2022-2023 term, he had the highest agreement rate with John Roberts. He had the lowest agreement rate with Clarence Thomas.[31] This does not include agreements in part.[32]

The table below highlights Kavanaugh's agreement rate with each justice on the court during that term.[33][34]


Brett Kavanaugh agreement rates by term, 2018 - Present
Justice 2018-2019 2019-2020 2020-2021 2021-2022 2022-2023 2023-2024
John Roberts 94% 93% 94% 100% 95% 95%
Clarence Thomas 80% 78% 78% 79% 73% 78%
Ruth Bader Ginsburg 63% 67% N/A N/A N/A N/A
Stephen Breyer 70% 70% 73% 62% N/A N/A
Samuel Alito 91% 80% 86% 89% 80% 84%
Sonia Sotomayor 64% 65% 66% 54% 78% 69%
Elena Kagan 70% 71% 72% 63% 80% 69%
Neil Gorsuch 70% 88% 87% 73% 82% 75%
Amy Coney Barrett N/A N/A 91% 89% 91% 90%
Ketanji Brown Jackson N/A N/A N/A N/A 80% 71%

Frequency in majority

In the 2023-2024 term, Kavanaugh was in the majority in 95 percent of decisions. He was in the majority more often than seven of the other justices.[30]In the 2022-2023 term, Kavanaugh was in the majority in 96 percent of decisions. He and Chief Justice John Roberts were in the majority more often than the other justices.[31][29][35][36]

Since joining the court during the 2018-2019 term, Kavanaugh has been in the majority more than 80 percent of the time six times. Across these terms, he has been in the majority on average 94 percent of all cases.[30]




Noteworthy cases

See also: Noteworthy cases heard by current justices on the U.S. Supreme Court

The noteworthy cases listed in this section include any case where the justice authored a 5-4 majority opinion or an 8-1 dissent. Other cases may be included in this section if they set or overturn an established legal precedent, are a major point of discussion in an election campaign, receive substantial media attention related to the justice's ruling, or based on our editorial judgment that the case is noteworthy. For more on how we decide which cases are noteworthy, click here.



Since he joined the court through the 2022 term, Kavanaugh authored the majority opinion in a 5-4 decision ten times and has not authored a dissent in a 8-1 decision. The table below details these cases by year.

Brett Kavanaugh noteworthy cases
Year 5-4 majority opinion 8-1 dissenting opinion
Total 10 0
2022-2023 2 0
2021-2022 1 0
2020-2021 1 0
2019-2020 4 0
2018-2019 2 0

U.S. Supreme Court noteworthy opinions

Water rights dispute on the Colorado River (2023)

See also: Arizona v. Navajo Nation

Justice Kavanaugh authored a 5-4 majority opinion in Arizona v. Navajo Nation, holding that although the 1868 treaty reserved necessary water to accomplish the purpose of the Navajo Reservation, the treaty did not require the United States to take affirmative steps to secure water for the Tribe. Kavanaugh was joined in the majority by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett.

“ Fourth, the Tribe argues that, in 1868, the Navajos would have understood the treaty to mean that the United States must take affirmative steps to secure water for the Tribe. But the text of the treaty says nothing to that effect. And the historical record does not suggest that the United States agreed to undertake affirmative efforts to secure water for the Navajos—any more than the United States agreed to farm land, mine minerals, harvest timber, build roads, or construct bridges on the reservation. The record of the treaty negotiations makes no mention of any waterrelated obligations of the United States at all. See Treaty Between the United States of America and the Navajo Tribe of Indians With a Record of the Discussions That Led to Its Signing.[20] ”
—Justice Brett Kavanaugh

District courts must stay proceedings during an ongoing interlocutory appeal (2023)

See also: Coinbase, Inc. v. Bielski

Justice Kavanaugh authored a 5-4 majority opinion in Coinbase, Inc. v. Bielski, holding that "[a] district court must stay its proceedings while an interlocutory appeal on the question of arbitrability is ongoing.[37] Kavanaugh was joined in the majority by Chief Justice John Roberts, Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett.[37]

“ When a federal district court denies a motion to compel arbitration, the losing party has a statutory right to an interlocutory appeal. See 9 U. S. C. §16(a). The sole question here is whether the district court must stay its pre-trial and trial proceedings while the interlocutory appeal is ongoing. The answer is yes: The district court must stay its proceedings.[20] ”
—Justice Brett Kavanaugh

State government can prosecute non-Natives committing crimes against Native Americans on Native land (2022)

See also: Oklahoma v. Castro-Huerta

Kavanaugh authored a 5-4 majority opinion in Oklahoma v. Castro-Huerta, holding that "the federal government and the state have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country."[38] Kavanaugh was joined in the majority by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett.

In the court's majority opinion, Justice Kavanaugh wrote:[38]

“ This case presents a jurisdictional question about the prosecution of crimes committed by non-Indians against Indians in Indian country: Under current federal law, does the Federal Government have exclusive jurisdiction to prosecute those crimes? Or do the Federal Government and the State have concurrent jurisdiction to prosecute those crimes? We conclude that the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.[20] ”
—Justice Brett Kavanaugh

No right to abortion under the U.S. Constitution (2022)

See also: Dobbs v. Jackson Women’s Health Organization

Kavanaugh joined the 6-3 majority and authored a concurring opinion in Dobbs v. Jackson Women’s Health Organization, holding that the U.S. Constitution did not provide a right to abortion. Associate Justice Samuel Alito authored the majority opinion, which was also joined by Associate Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett. Chief Justice John Roberts joined with the majority to uphold Mississippi's abortion law but not to overturn Roe and Casey. Alito wrote:

“ We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth

Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).

The right to abortion does not fall within this category.[20]

”
—Justice Alito

In his concurring opinion, Kavanaugh wrote:

“ The issue before this Court, however, is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion. The text of the Constitution does not refer to or encompass abortion. To be sure, this Court has held that the Constitution protects unenumerated rights that are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty. But a right to abortion is not deeply rooted in American history and tradition, as the Court today thoroughly explains.


On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.[20]

”
—Justice Kavanaugh

Standing in class-action lawsuits (2021)

See also: TransUnion LLC v. Ramirez

Kavanaugh authored a 5-4 majority opinion in TransUnion LLC v. Ramirez, holding that members of the class-action lawsuit whose credit files were not provided to third-party businesses did not suffer a concrete harm from TransUnion's actions and therefore lacked standing to sue under Article III. Kavanaugh was joined in the majority by Justices Chief Justice John G. Roberts, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett.[39]

“ To have Article III standing to sue in federal court, plaintiffs must demonstrate, among other things, that they suffered a concrete harm. No concrete harm, no standing. Central to assessing concreteness is whether the asserted harm has a “close relationship” to a harm traditionally recognized as providing a basis for a lawsuit in American courts—such as physical harm, monetary harm, or various intangible harms including (as relevant here) reputational harm. Spokeo, Inc. v. Robins, 578 U. S. 330, 340–341 (2016).


In this case, a class of 8,185 individuals sued TransUnion, a credit reporting agency, in federal court under the Fair Credit Reporting Act. The plaintiffs claimed that TransUnion failed to use reasonable procedures to ensure the accuracy of their credit files, as maintained internally by TransUnion. For 1,853 of the class members, TransUnion provided misleading credit reports to third-party businesses. We conclude that those 1,853 class members have demonstrated concrete reputational harm and thus have Article III standing to sue on the reasonable-procedures claim. The internal credit files of the other 6,332 class members were not provided to third-party businesses during the relevant time period. We conclude that those 6,332 class members have not demonstrated concrete harm and thus lack Article III standing to sue on the reasonable-procedures claim. [20]

”
—Justice Kavanaugh[39]

Habeas corpus review in cases concerning the death penalty (2019)

See also: McKinney v. Arizona

Kavanaugh authored a 5-4 majority opinion in McKinney v. Arizona, holding that a state appellate court, rather than a jury, may conduct a reweighing of aggravating and mitigating circumstances on habeas corpus review in cases concerning the death penalty. Kavanaugh was joined in the majority by Justices Chief Justice John G. Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch.[40]

“ A Clemons reweighing is a permissible remedy for an Eddings error, and when an Eddings error is found on collateral review, a state appellate court may conduct a Clemons reweighing on collateral review. McKinney’s argument that a jury must resentence him does not square with Clemons, where the Court held that a reweighing of the aggravating and mitigating evidence may be conducted by an appellate court. ... Because Clemons involved an improperly considered aggravating circumstance, McKinney maintains that it is inapposite here, where the case involves an improperly ignored mitigating circumstance. Clemons, however, did not depend on any unique effect of aggravators as distinct from mitigators. For purposes of appellate reweighing, there is no meaningful difference between subtracting an aggravator from one side of the scale and adding a mitigator to the other side. McKinney also argues that Clemons is no longer good law in the wake of Ring v. Arizona, and Hurst v. Florida, where the Court held that a jury must find the aggravating circumstance that makes the defendant death eligible.


But that does not mean that a jury is constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range. ... McKinney notes that the Arizona trial court, not the jury, made the initial aggravating circumstance finding that made him eligible for the death penalty. But McKinney’s case became final on direct review long before Ring and Hurst, which do not apply retroactively on collateral review, ... and the Arizona Supreme Court’s 2018 decision reweighing the aggravators and mitigators did not constitute a reopening of direct review.[20]

”
—Justice Kavanaugh[40]

Removable offenses in deportation case (2019)

See also: Barton v. Barr

Kavanaugh authored a 5-4 majority opinion in Barton v. Barr, holding that for purposes of cancellation-of-removal eligibility, a §1182(a)(2) offense committed during the initial seven years of residence does not need to be one of the offenses of removal. Kavanaugh was joined in the majority by Justices Chief Justice John G. Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch.[41]

“ Removal of a lawful permanent resident from the United States is a wrenching process, especially in light of the consequences for family members. Removal is particularly difficult when it involves someone such as Barton who has spent most of his life in the United States. Congress made a choice, however, to authorize removal of noncitizens—even lawful permanent residents—who have committed certain serious crimes. And Congress also made a choice to categorically preclude cancellation of removal for noncitizens who have substantial criminal records. Congress may of course amend the law at any time. In the meantime, the Court is constrained to apply the law as enacted by Congress. Here, as the BIA explained in its 2006 Jurado-Delgado decision, and as the Second, Third, Fifth, and Eleventh Circuits have indicated, the immigration laws enacted by Congress do not allow cancellation of removal when a lawful permanent resident has amassed a criminal record of this kind.


We affirm the judgment of the U. S. Court of Appeals for the Eleventh Circuit.[20]

”
—Justice Kavanaugh[41]

Standing in case concerning Employee Retirement Income Security Act of 1974 (ERISA) (2019)

See also: Thole v. U.S. Bank

Kavanaugh authored a 5-4 majority opinion in Thole v. U.S. Bank, holding the plaintiffs did not have standing and would still receive the same amount of monthly benefits regardless of the case's outcome. Kavanaugh was joined in the majority by Justices Chief Justice John G. Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch.[42]

“ We affirm the judgment of the U. S. Court of Appeals for the Eighth Circuit on the ground that the plaintiffs lack Article III standing. Thole and Smith have received all of their monthly benefit payments so far, and the outcome of this suit would not affect their future benefit payments. ... The plaintiffs therefore have no concrete stake in this lawsuit.[20] ”
—Justice Kavanaugh[42]

Previous noteworthy opinions


D.C. Circuit opinions

Rochelle Garza v. Eric D. Hargan (2015)

Kavanaugh dissented from a majority ruling which required the government to permit a pregnant 17-year-old girl who had entered the country without legal permission to obtain an abortion. He wrote that although the U.S. Supreme Court ruled that the Constitution protects a woman's decision to choose abortion, there was room for the government to apply "reasonable regulations that do not impose an undue burden."[45]

Larry Elliott Klayman v. Barack Obama (2015)

Kavanaugh wrote a concurring opinion denying the rehearing of a lawsuit about government data collection called Larry Elliott Klayman v. Barack Obama. Kavanaugh said his reason for denial was that the government's data collection program was compatible with the Fourth Amendment. He wrote,

“ The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment...[C]ritical national security need outweighs the impact on privacy occasioned by this program.[46][20] ”

SCOTUS reverses D.C. Circuit over clean air regulations (2014)
See also: United States Court of Appeals for the District of Columbia Circuit (E.P.A. v. EME Homer City Generation; American Lung Association v. EME Homer City Generation)

On April 29, 2014, the U.S. Supreme Court reversed the judgment of a divided three-judge panel of the United States Court of Appeals for the District of Columbia Circuit in E.P.A. v. EME Homer City Generation. Kavanaugh wrote the opinion of the circuit panel.

In 2011, the Environmental Protection Agency (EPA) created the Transport Rule, which established emission standards for 28 states identified as upwind states. Upwind states were those states whose air pollution impacted the air quality of those states identified as downwind states. The EPA rule created emissions standards in upwind states based on the air quality standards in downwind states. A number of litigants filed a lawsuit in the D.C. Circuit, alleging the federally established standards violated states' rights. Writing for a 2-1 circuit panel, Kavanaugh held that the rule violated federal law because the Clean Air Act permitted states to implement their own contingencies to reduce air pollution.

Writing for a six-justice majority, Justice Ruth Bader Ginsburg reversed the circuit panel, holding that "in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. ... we reversed a D. C. Circuit decision that failed to accord deference to EPA’s reasonable interpretation of an ambiguous Clean Air Act provision. Satisfied that the Good Neighbor Provision does not command the Court of Appeals’ cost-blind construction, and that EPA reasonably interpreted the provision, we reverse the D. C. Circuit’s judgment."[47][48]

Kavanaugh's list of his top ten cases

Kavanaugh completed a questionnaire in July 2018 for the Senate Judiciary Committee that included a list of what were, in his view, the ten most important cases in which he had a role. They are listed below. Kavanaugh's summary of the cases are below each case name.[49]

Noteworthy events

Tested positive for coronavirus on September 30, 2021

See also: Politicians, candidates, and government officials diagnosed with or quarantined due to the coronavirus (COVID-19) pandemic, 2020
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Coronavirus pandemic
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On October 1, 2021, the Supreme Court announced in a press release that Kavanaugh tested positive for COVID-19 on September 30. The press release said Kavanaugh was fully vaccinated at the time he contracted the virus.[50]

See also

External links

Footnotes

  1. ↑ CNN, "Brett Kavanaugh sworn in as Supreme Court justice," October 6, 2018
  2. ↑ Biography, "Brett Kavanaugh," accessed August 6, 2024
  3. ↑ 3.0 3.1 3.2 3.3 Britannica, "Brett Kavanaugh," accessed August 6, 2024
  4. ↑ Oyez, "Brett Kavanaugh," accessed January 31, 2019
  5. ↑ CNN, "Supreme Court is about to have 3 Bush v. Gore alumni sitting on the bench," October 7, 2020
  6. ↑ U.S. Government Publishing Office, "Conformation hearing on the nomination of Brett M. Kavanaugh to be Circuit Judge for the District of Columbia Circuit," April 27, 2004
  7. ↑ Cornell Law School, "Brett M. Kavanaugh, Associate Justice (2018-present)," accessed August 6, 2024
  8. ↑ The Washington Post, "Brett Kavanaugh and allegations of sexual misconduct: The complete list," September 27, 2018
  9. ↑ CNN, "The moments that defined the Christine Blasey Ford-Brett Kavanaugh hearing," September 28, 2018
  10. ↑ The Hill, "Judiciary panel approves Kavanaugh, sending nomination to full Senate," September 28, 2018
  11. ↑ Boston University School of Law, "Brett Kavanaugh, Conservative or Constitutionalist?" accessed August 6, 2024
  12. ↑ Politico, "What Brett Kavanaugh Really Thinks," August 6, 2018
  13. ↑ 13.0 13.1 Federal Judicial Center, "Kavanaugh, Brett M.," accessed April 16, 2021
  14. ↑ SCOTUSblog, "Potential nominee profile: Brett Kavanaugh," June 28, 2018
  15. ↑ American Enterprise Institute, "From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist," accessed April 16, 2021
  16. ↑ Oyez, "Brett Kavanaugh," accessed August 13, 2019
  17. ↑ SCOTUSBlog, "Final Stat Pack for October Term 2019 (updated)," July 10, 2020
  18. ↑ 18.0 18.1 18.2 18.3 New Civil Liberties Alliance, "NCLA Ranks the Short List of Candidates to Replace Justice Kennedy," accessed April 16, 2021
  19. ↑ "New Civil Liberties Alliance", "Mission," accessed April 16, 2021
  20. ↑ 20.00 20.01 20.02 20.03 20.04 20.05 20.06 20.07 20.08 20.09 20.10 20.11 20.12 20.13 20.14 20.15 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  21. ↑ Common Dreams, "Kavanaugh Has Publicly Discussed Cases Before, Including Those He Would Like to Overturn," September 5, 2018
  22. ↑ C-SPAN, "Judge Brett Kavanaugh Supreme Court Nomination Announcement," July 9, 2018
  23. ↑ American Bar Association "Ratings of Article III and Article IV judicial nominees," accessed April 16, 2021
  24. ↑ 24.0 24.1 Congress.gov, "PN2259 — Brett M. Kavanaugh — Supreme Court of the United States," accessed October 8, 2018
  25. ↑ Law 360, "Judge Kavanaugh Stops DC Circ. Work For Confirmation Fight," July 17, 2018
  26. ↑ Supreme Court of the United States, "Press Releases," June 27, 2018
  27. ↑ The Washington Post, "Watch Brett Kavanaugh's full acceptance speech after Trump nomination," July 9, 2018
  28. ↑ Congress.gov, "PN1179 — Brett M. Kavanaugh — The Judiciary," accessed April 16, 2021
  29. ↑ 29.0 29.1 SCOTUSblog, "STAT PACK for the Supreme Court’s 2021-22 term," July 1, 2022
  30. ↑ 30.0 30.1 30.2 Empirical SCOTUS, "2023 Stat Review," July 1, 2024
  31. ↑ 31.0 31.1 Empirical SCOTUS, "Another One Bites the Dust: End of 2022/2023 Supreme Court Term Statistics," November 16, 2023
  32. ↑ SCOTUSblog, "STAT PACK for the Supreme Court’s 2021-22 term," accessed November 16, 2023
  33. ↑ Due to a change in the 2020 stat pack format, the agreement rate uses the rate of agreement in judgment.
  34. ↑ Due to a change in the 2021 stat pack format, the agreement rate uses the rate of agreement in judgment.
  35. ↑ SCOTUSblog, "2020-21 Stat pack: Frequency in the majority," July 2, 2021
  36. ↑ SCOTUSblog, "Frequency in the Majority," accessed September 21, 2020
  37. ↑ 37.0 37.1 SUPREME COURT OF THE UNITED STATES, COINBASE, INC. v. BIELSKI , decided June 23, 2023
  38. ↑ 38.0 38.1 U.S. Supreme Court, Oklahoma v. Castro-Huerta, decided June 29, 2022
  39. ↑ 39.0 39.1 U.S. Supreme Court, TransUnion LLC v. Ramirez, decided June 25, 2021
  40. ↑ 40.0 40.1 Supreme Court of the United States, McKinney v. Arizona, decided February 25, 2020
  41. ↑ 41.0 41.1 Supreme Court of the United States, Barton v. Barr, decided April 23, 2020
  42. ↑ 42.0 42.1 Supreme Court of the United States, Thole v. U.S. Bank, decided June 1, 2020
  43. ↑ Supreme Court of the United States, Manhattan Community Access Corp. v. Halleck, decided June 17, 2019
  44. ↑ Supreme Court of the United States, "Apple Inc. v. Pepper," May 13, 2019
  45. ↑ Lyle Denniston Law News, "LARRY ELLIOTT KLAYMAN, ET AL., APPELLEES v. BARACK OBAMA, ET AL., APPELLANTS," accessed July 23, 2018
  46. ↑ Lyle Denniston Law News, "Larry Elliott Klayman v. Barack Obama," accessed July 24, 2018
  47. ↑ Supreme Court of the United States, Environmental Protection Agency v. EME Homer City Generation L.P., decided April 29, 2014
  48. ↑ Oyez.org, "Environmental Protection Agency v. EME Homer City Generation," accessed October 9, 2017
  49. ↑ Committee on the Judiciary, "QUESTIONNAIRE FOR NOMINEE TO THE SUPREME COURT," accessed July 26, 2018
  50. ↑ WOWT, "Justice Kavanaugh tests positive for COVID-19, has no symptoms," October 1, 2021

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