At Brett Kavanaugh’s Supreme Court nomination ceremony Monday night, the Trump nominee told the country little about his actual views on the law. Naturally, Kavanaugh paid lip service to textualism and originalism, the faddish interpretive theories that currently dominate the conservative legal academy. But his substantive musings were limited to a suggestion that he, like Justice Anthony Kennedy before him, would devote his career to “securing liberty.”
As slight as this statement might seem, it may have been the only illuminating part of the whole Kabuki theater. Kavanaugh’s promise is entirely in line with the jurisprudence that he has laid out during his 12 years on the U.S. Court of Appeals for the District of Columbia Circuit. The judge is prone to wax poetic about liberty—then selectively apply this constitutional value in a manner that aligns perfectly with the Republican Party platform. Liberty for undocumented minors and Guantanamo detainees? No. Liberty for predatory lenders, industrial polluters, telecom monopolies, religious employers, Abu Ghraib abusers, and assault-weapon enthusiasts? Absolutely. Kavanaugh’s record exposes a judge eager to impose his conservative policy preferences upon the country under the guise of constitutional law. In other words, he is the perfect nominee to accelerate the Supreme Court’s slide into a new Lochner era of systematic judicial assaults on financial regulations, gun safety laws, environmental protections, and organized labor.
At his confirmation hearings to the D.C. Circuit, Kavanaugh disavowed the infamous Lochner ruling in a prickly exchange with Sen. Chuck Schumer. The 1905 decision, in which the Supreme Court struck down New York’s maximum-hour rule for bakery employees, remains the most notorious case of a 40-year period during which the court invalidated all manner of progressive legislation. Health and safety regulations, minimum wage laws, and federal limits on child labor all fell in the Lochner era, under the theory that workers have a constitutional “liberty of contract” to sell their labor under any conditions, and the federal government has little authority to regulate business. During his hearing, Kavanaugh disavowed Lochner, calling it a “classic example of judges superimposing their personal views on the decision-making process in an improper manner.”
Yet after ascending to the D.C. Circuit in 2006, Kavanaugh proceeded to follow the example of the Lochner justices. In a ghastly 2009 decision, he cast the decisive vote blocking lawsuits by Iraqis who claim to have been beaten, electrocuted, and raped by private contractors at Abu Ghraib prison. No federal statute shields contractors from civil suits under state law. Yet the majority concocted a “federal common law” to protect private contractors, then used this fabricated rule—derived from no statute or constitutional provision—to toss out the victims’ claims. In a seething dissent, Judge Merrick Garland castigated his colleagues for deploying a “vague and amorphous” standard to write their “policy concerns” into law. The ruling was Lochner on an international scale, with devastating consequences for torture victims.
Kavanaugh has illustrated a similar indifference toward mass-shooting survivors and a fervor to safeguard gun sellers as vigorously as he defended violent military contractors. In a 2011 dissent, Kavanaugh declared that D.C.’s ban on assault weapons and high-capacity magazines ran afoul of the Second Amendment. The district contended that the ban would save lives, since these firearms are disproportionately used to shoot dozens of people in just minutes. Kavanaugh, however, claimed that the government may not prohibit semi-automatic rifles under the Supreme Court’s decision in D.C. v. Heller, which struck down D.C.’s ban on semi-automatic handguns.
Bizarrely, Kavanaugh proclaimed that there “is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles.” Really? As the Trace’s Alex Yablon has pointed out, the most common semi-automatic handgun bullet exits the muzzle with 300–400 foot-pounds of kinetic energy—while the most common semi-automatic rifle bullet exits the barrel with up to 1,600 foot-pounds of kinetic energy. As survivors of the Parkland, Florida, mass shooting know, the bullets of assault weapons are far more devastating to the human body. An ER doctor who treated these patients explained that, unlike handgun bullets, this high-velocity ammunition leaves “a swath of tissue damage that extends several inches from its path. It does not have to actually hit an artery to damage it and cause catastrophic bleeding. Exit wounds can be the size of an orange.”
Yet to Kavanaugh, the astonishing lethality of these weapons as compared to handguns did not justify the district’s ban. And he didn’t stop there: He also would’ve struck down a straightforward law directing gun owners to register their weapons with the government. Neither of these positions can be plausibly derived from the Supreme Court’s ruling in Heller. Instead, they appear to be a reflection of Kavanaugh’s personal belief that mass shootings are simply the price we pay for liberty.
In a quartet of opinions issued over the past few years, Kavanaugh cemented his position as a judge keen to defend corporations with Lochner-esque zeal. In 2015, he dissented from a decision holding that the Obama administration could ask religious employers to exempt themselves from the contraceptive mandate by simply signing a sheet of paper. Compelling companies to sign this form, Kavanaugh asserted, violated their religious liberty under federal law, because it made them “complicit in facilitating contraception.” Two months later, he wrote an opinion blocking new limits on air pollution that cross state lines—a sequel to an earlier, more sweeping ruling in which Kavanaugh struck down federal regulations of cross-state emissions, only to be reversed by the Supreme Court.
Then, in 2017, Kavanaugh struck his most radical stance yet: He proclaimed that net neutrality violates the First Amendment. In a lone dissent, Kavanaugh compared internet service providers to “publishers, newspapers, and pamphleteers” who apply “editorial discretion” to their content. Internet service providers, Kavanaugh wrote, have a free-speech right to throttle the websites of their competitors, just as newspaper editors have a right to select their preferred op-eds. The government, he concluded, has no power “to regulate the content choices of private editors” (like Comcast), even when those “editors” are using their monopoly power to crush competition in the interest of profit, not expression.
But the coup de grâce of Kavanaugh’s Lochner streak came when the judge announced that the structure of the Consumer Financial Protection Bureau is unconstitutional. He first attacked the CFPB in October 2016, writing for the majority on a three-judge panel; his onslaught continued this past January, when the full D.C. Circuit reversed his panel decision, upholding the CFPB and prompting Kavanaugh to write a bitter dissent. The CFPB, an executive agency that regulates the financial services industry (to great success), is led by a single commissioner who can only be removed by the president for cause. Noting Congress’ desire to shield this commissioner from “political winds and presidential will” in light of the 2008 recession, the full D.C. Circuit upheld the agency’s independence.
A furious Kavanaugh made no mention of the financial crash that spurred the creation of the CFPB. Rather, he wrote that the case was “about executive power and individual liberty.” Not the liberty of Americans to avoid scams, fraud, and deceit, but the liberty of corporations to be regulated by agencies with more “accountability” to the president. In fact, Kavanaugh spilled no ink on the thousands of people whom the CFPB has protected from fraud, devoting his entire dissent to the constitutional rights of the financial sector. His opinion uses the word liberty 42 times, complaining that the CFPB’s “concentration of enormous power” somehow threatens “individual liberty” (a phrase used 25 times) by reining in consumer fraud and providing restitution to victims.
In response, the majority dismissed Kavanaugh’s “unmoored liberty analysis” and criticized his apathy toward “Americans’ devastating losses of property and livelihood.” Why, the court wondered, should it evaluate the law “with reference to the liberty of financial services providers, and not more broadly to the liberty of the individuals and families who are their customers”?
Kavanaugh had no response. But the rejoinder is obvious: Because he cares much more about businesses’ rights and is willing to contort the law in order to protect them. That’s Lochner-ism in a nutshell, and it’s what the United States is about to receive in a Supreme Court justice. At his confirmation hearings this fall, Kavanaugh’s interlocutors should ask him who, exactly, gets to seek refuge in the Constitution’s guarantee of liberty. Kavanaugh’s past jurisprudence already reveals the answer: It isn’t we the people. It’s we the corporations.
One more thing
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