For all the uncertainty about Brett Kavanaugh’s views on abortion, the real key to his legal—and political—impact on the Supreme Court could eventually be his demonstrated resistance to the federal regulation of business.
Kavanaugh’s repeated votes as an appellate-court judge to overturn federal regulatory actions point toward a Court even more adamantly tilted than it is today against environmental, consumer-protection, and financial-reform rules.
That shift could trigger interlocked political consequences that unfold for years. From one direction, it could help the GOP answer one of the most delicate questions of the Donald Trump era: how to maintain the allegiance of business amid widespread unease among many corporate leaders about the key pillars of Trump’s racially divisive economic nationalism. But in the process, a Court consistently resistant to constraints on corporate power may also intensify the populist backlash against business that’s already visible among Democrats, with the rising influence of Senator Bernie Sanders and like-minded allies.
While Kavanaugh’s record offers few clues about his view on the 1973 Roe v. Wade decision that legalized abortion nationwide, he has demonstrated an unequivocal skepticism about federal regulation of business. Jennifer Mascott, a former Kavanaugh law clerk and an assistant professor at George Mason University’s law school, recently wrote that, “Even during this era of generous judicial deference to administrative agencies, Judge Kavanaugh has written 40 opinions finding agency action to be unlawful and joined majority opinions reversing agency action in at least 35 additional cases.”
With that history, Kavanaugh, if he’s confirmed, would join the four other Republican-appointed justices to produce a Court possibly more hostile to federal administrative authority over business than at any point in at least 80 years, predicts Stephen Vladeck, a University of Texas law professor who closely tracks the D.C. Circuit Court of Appeals where Kavanaugh has served since 2006.
In a process that began with the landmark Lochner v. New York case in 1905, conservative Supreme Court majorities early in the 20th century routinely struck down as unconstitutional federal and state limits on business behavior, such as maximum-work-hour rules. That process peaked when the Supreme Court—at the time dominated by seven members appointed by previous Republican presidents—invalidated a succession of Franklin D. Roosevelt’s early New Deal measures. Roosevelt responded in 1937 with legislation that allowed him to make more appointments by enlarging the Court’s size. Though Congress rejected FDR’s “court-packing” plan, the justices, under political pressure, changed direction to uphold more of Roosevelt’s measures—a process famously described as the “switch in time that saved nine.”
Vladeck says he can easily imagine similar conflicts recurring between five Republican-appointed Supreme Court justices and the next Democratic president. “It’s not hard to see a narrative where we see the interbranch battles of the 1930s repeating, and where we get to a point where you have a Democratic Congress and a Democratic president routinely thwarted by a deeply conservative Supreme Court,” he says.
Vladeck and other observers have noted a sharp contrast in Kavanaugh’s judicial record and legal writings. On the one hand, he has argued for greater deference to presidential authority; on the other, he has insisted on greater scrutiny of federal administrative actions. That perspective, Vladeck notes, translates in Kavanaugh’s record to “broad deference to the executive branch on foreign policy and national security,” coupled with extreme skepticism on domestic regulation. On each front, that precisely aligns Kavanaugh with the dominant view among conservatives about the executive branch’s proper role.
On the D.C. Circuit Court, he’s been especially aggressive about invalidating federal regulatory actions, such as the Federal Communications Commission’s net-neutrality rules. And Kavanaugh has been particularly tough on the Environmental Protection Agency, repeatedly ruling against its authority to regulate mercury, toxic emissions, air pollution that crosses state lines, and the greenhouse gases linked to global climate change. (The latter position could be particularly pivotal because Justice Anthony Kennedy, whom Kavanaugh would replace, provided the pivotal fifth vote in the landmark 2007 Supreme Court decision that required the EPA to regulate greenhouse gases.) More broadly, Kavanaugh has repeatedly questioned the validity of the Court’s “Chevron” doctrine, which says that regulatory agencies deserve deference in how to interpret the laws they administer. That’s music to the ears of C-suite general counsels.
In all these ways, Kavanaugh can be viewed as an antidote to the business anxieties that prompted Wednesday’s toothless, but symbolic, Senate vote challenging Trump’s trade agenda.
Trump’s protectionism—like his tendency to criticize individual companies that displease him, his open appeals to white racial resentments, and his desire to slash undocumented and legal immigration—makes many corporate leaders hesitant about identifying too closely with him. And yet Trump is tilting federal policy so lopsidedly toward corporate preferences on tax cuts, regulatory rollbacks, and conservative judicial appointments that most are swallowing their doubts: Looking across all industries, business is still directing a 52 percent majority of its 2018 campaign contributions toward preserving the congressional Republican majorities resolutely defending Trump, according to the Center for Responsive Politics.
Trump’s tempestuous personality and appeals to racial division are clearly costing him support among some business-oriented voters, particularly the usually GOP-leaning white-collar whites offering him much lower approval ratings than usual for a Republican president. But the Kavanaugh appointment is a reminder that Trump is providing business enough tangible benefits to keep its major institutions mostly behind him. The biggest threat to the GOP isn’t that business will bolt its coalition; the real risk is that its deference to business, symbolized by the reflexive hostility to regulation that Kavanaugh would bring to the Court, stirs a backlash among the many voters who don’t exempt corporate America from their skepticism about virtually every other large institution.
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