Washington – President Donald Trump’s nomination of Judge Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the Supreme Court could tilt the high court against working people for decades to come.
The Washington Post once described Kavanaugh, who now sits of the U.S. Circuit Court of Appeals for D.C., as “nothing more than a partisan shock trooper in a black robe waging an ideological battle against government regulation.”
Working people are already grappling with a brand of corporate, right-wing judicial activism that has taken hold of whole swaths of the justice system. Recent decisions by the current Supreme Court – often the result of 5-4 votes – have shown a troubling tendency to side with greedy corporations over working people whenever given the chance. Kavanaugh, based on his judicial record, will only skew that further.
In her dissent in Janus v. AFSCME, Council 31, Justice Elena Kagan warned against those who would act as a “black-robed ruler overriding citizens’ choices.”
Kavanaugh has made it clear he would be more of the same. He has spent his career ruling against working families, undermining workers’ rights and enabling discrimination on the job.
As AFL-CIO President Richard Trumka said, “Any senator who believes Supreme Court justices should protect the rights of all Americans should reject this nomination and demand a nominee who will protect the rights of working people and uphold our constitutional values of liberty, equality and justice for all.”
Kavanaugh routinely rules against working people and their families:
• American Federation of Government Employees, AFL‑CIO v. Gates – Kavanaugh handed down an opinion that his colleagues argued would allow the secretary of defense to “abolish collective bargaining altogether.”
In this 2007 ruling, Kavanaugh gave the Defense Department a temporary win against its 700,000 civilian workers, represented by AFGE, writing that the 2004 Bush-era Defense Department law gave Bush’s DOD temporary authority, through November 2009, to curb civilian defense workers’ collective bargaining rights. AFGE and its allies later persuaded Congress to dump that.
Kavanaugh said dissenting congressional Democrats held no weight with the courts and that the “relevant terms” of the 2004 law authorized the DOD “to curtail collective bargaining” for its civilian workers.
• Agri Processor Co. Inc. v. National Labor Relations Board – In this 2008 ruling, Kavanaugh wrote that the company should not be ordered to bargain with the United Food and Commercial Workers because undocumented workers employed by the company were ineligible to vote in a union election. In direct conflict with long-standing Supreme Court precedent, Kavanaugh said undocumented workers can’t unionize under the National Labor Relations Act.
Kavanaugh wrote that “an illegal immigrant worker is not an ‘employee’ under the National Labor Relations Act for the simple reason that, ever since 1986, under federal immigration law, an illegal immigrant worker is not an ‘employee’ in the United States” – even if a company knowingly employs them.
• Venetian Casino Resort LLC v. NLRB – In this 2015 ruling, Kavanaugh overturned an NLRB decision finding that a hotel engaged in unfair labor practices when it requested police officers issue criminal citations to union demonstrators who were legally protesting in front of the casino.
• SeaWorld of Florida LLC v. Perez – In a dissent with the court majority, Kavanaugh said the government went too far in regulating sports and entertainment when the Occupational Safety and Health Review Commission came down on SeaWorld in Florida following the drowning death of a trainer.
Kavanaugh said the court majority’s 2014 decision, for the commission and against Sea World, “green-lights the department to regulate sports and entertainment in a way Congress could not have conceivably intended.” Under that logic, Kavanaugh said, OSHA could regulate football tackling and NASCAR races.
Kavanaugh regularly sides with the privileged and corporations, over the less powerful:
• He wrote two dissents contending that Exxon Mobil Corp., should not be held responsible for its overseas misconduct. After Indonesian villagers alleged they were tortured and killed by soldiers working for Exxon, Kavanaugh argued that allowing the villagers to sue Exxon would interfere with the U.S. government’s ability to conduct foreign relations.
• In United States v. Anthem, he sided with the merger of insurance companies Anthem and Cigna, which would have reduced competition for consumers in 14 states. The majority criticized Kavanaugh’s application of “the law as he wishes it were, not as it currently is.”
Finally, Kavanaugh could be bad news for any investigation of the Trump campaign’s involvement in Russian interference in the 2016 U.S. presidential election as he has taken the position that a sitting president can’t be indicted, or even questioned, in a criminal probe. He can only be impeached.
You can send a letter urging your senator to reject Kavanaugh at https://bit.ly/2NaH5Q4.