Jurisprudence

Brett Kavanaugh Has His Own “Frozen Trucker” Case

It involves a killer whale.

Brett Kavanaugh walks up the steps of the Capitol, with the Supreme Court building visible behind him.
Supreme Court nominee Brett Kavanaugh arrives prior to meeting with Senate Majority Leader Mitch McConnell on Capitol Hill on July 10.
Joshua Roberts/Reuters

If you’ve read a profile of Judge Brett Kavanaugh in the past month, you’ve probably seen some version of the following personality sketch: He’s not just a brilliant jurist, but also an all-around great guy! There are a few oft-cited examples given to back up this view: He hires female clerks and doesn’t harass them; he reads law review articles and history; he chats supportively with a Supreme Court litigator about balancing work and family; he’s a carpool dad and basketball coach.

Got it. He’s a smart man who’s often kind to fellow elites and to his loved ones.

Here’s what all of the paeans to Kavanaugh’s character haven’t been able to offer: any examples of Judge Kavanaugh using his legal skills to represent the type of client who is excluded from power in our society, or any record of an effort to address that exclusion. There’s a simple reason there are no descriptions of him helping a tenant avoid eviction, or representing an employee confronting discrimination, or litigating on behalf of a family suing an insurance company that denied coverage to a terminally ill patient. No matter how nice and smart he is, Judge Kavanaugh has chosen Goliath over David, just about every time.  

You know what Thurgood Marshall did before he became a Supreme Court justice? He founded the NAACP Legal Defense and Education Fund, and was a key architect of the legal strategy that ultimately ended segregation. He traveled extensively, often at personal risk, bringing key civil rights cases in “small, dusty, scorching courtrooms throughout the south,” as the organization’s website states. And Ruth Bader Ginsburg? She led the ACLU Women’s Rights Project, bringing groundbreaking cases that smashed stereotypes and opened doors for women nationwide. Justices Marshall and Ginsburg personally experienced discrimination firsthand. Both of them surely spent hours with clients who had suffered similarly grievous wrongs, seeing their faces, hearing their voices, and understanding their pain as well as the resolve necessary to do the arduous work of bringing about change.

It would be nearly impossible to do that pioneering work without developing an analysis of power relations: how some people have power in society and others do not, how those with power can abuse it, how people without power can gain it by using the law or by acting collectively.

Judge Kavanaugh, in contrast, seems to have little understanding of how not everyone has access to the networks, education, lucky accidents of birth, and above all, money that give some people a greater voice over others. Perhaps this blind spot helps explain why such a nice carpool dad takes so many not-so-nice positions.

One such instance, a dissent in a labor case involving a worker killed at SeaWorld, has been widely reported, largely because of the dramatic and tragic facts. A SeaWorld trainer named Dawn Brancheau was drowned by Tilikum the killer whale during a performance. Kavanaugh dissented from the appellate panel’s decision to uphold a government fine totaling a whopping $7,000. (No, that’s not a typo. Only three zeros.) But Kavanaugh’s dissent is important also because it provides a window into the limited and skewed nature of his worldview.

The panel’s majority opinion focused on SeaWorld’s pre-existing awareness of the dangers involved in Brancheau’s work and knowledge of multiple previous deaths caused by Tilikum himself. The majority also noted the ready availability of hazard abatement measures, which SeaWorld adopted only after the tragedy. (These measures don’t seem to have put the company out of business.)

The law assigns employers the duty to provide a workplace “free from recognized hazards …  likely to cause death or serious physical harm.” This requirement exists, as the majority pointed out, even for employees with extremely dangerous jobs, like handling explosives or installing power lines. Arguments that these employees are out of luck because they “assumed the risk” were rejected years ago.

In his dissent, Kavanaugh showed a stunning lack of understanding of what it means to be a working person whose livelihood depends on a job she has little ability to affect. Like a starry-eyed 10-year-old Little League player, Kavanaugh breathlessly analogized Brancheau’s position to that of playing football, skydiving, bull riding at the rodeo, and participating in other athletic feats, and concluded that some activities are inherently so dangerous that the participants assume life-threatening risk.

For starters, Kavanaugh just got the law wrong. Even in his ESPN extreme courtroom, the law would require a skydiving outfit to provide backup parachutes, for example. More ominously, what Kavanaugh misses entirely is that whether you like your job or not (it was Brancheau’s dream job), there’s a major power imbalance between a worker and her employer. As Service Employees International Union lawyer Andrew Strom observed, “It’s as though Kavanaugh can’t imagine that someone might want to be an animal trainer and also have safer working conditions.” It’s also as though Kavanaugh can’t imagine what would be likely to happen if Brancheau had sought safety improvements before her untimely death. Employees are routinely—and unlawfully—shown the door when they try to better their working conditions in any way, whether seeking lawful pay, safe conditions, freedom from discrimination, or trying to form a union.

Kavanaugh’s approach in this case is eerily reminiscent of Justice Neil Gorsuch’s “frozen trucker” dissent, which drew attention during his nomination process. Gorsuch rejected a reinstatement and back-pay order for a truck driver who was fired when he briefly and temporarily left his broken trailer in subzero temperatures, because he was losing feeling in his torso and limbs, and the brakes mechanic repeatedly promised by his employer had not shown up.

This dissent foreshadowed Gorsuch’s Supreme Court jurisprudence. As the author of the Epic Systems decision, which allows employers to force workers to waive their right to bring a class-action lawsuit, Gorsuch’s description of how workers end up stuck with arbitration clauses is fanciful indeed: The employee and employer “entered into an agreement providing that they would arbitrate any disputes that might arise between them.” It brings to mind the image of two gentlemen in bow ties shaking hands over a mahogany table, each having thoughtfully come to an agreement that arbitration would better serve his particular business needs. But anyone remotely familiar with today’s workplace knows that these are not “agreements” in any normal sense of the word: Workers are forced to accept boilerplate arbitration clauses—sometimes on touch screens, sometimes in a language they don’t know—simply to get in the door.

Of course, the most effective way for people without power to fight those at the top is through acting collectively. Not surprisingly, Kavanaugh is entirely unsympathetic to workers who try to exert power by taking collective action. His anti-union rulings are many. Here’s one that encapsulates the flavor: In Kavanaugh’s world, an employer can benefit from years of undocumented workers’ labor, coincidentally “learn” of their immigration status days after the workers form a union, and then refuse to bargain with the union. Because in Kavanaugh’s world, such workers are not “employees” entitled to any legal protection at all. In this and countless other cases, Kavanaugh repeatedly rejected people’s attempts to act collectively to gain power at work and in life.

So please: No more profiles about how luminously brilliant, or how supportive a basketball coach, or how nonharassing a boss Judge Kavanaugh is. The job he’s auditioning for is about more than that. It’s about justice. (The word is actually in the job title.) Justice requires understanding how the world really works, and not only from the view on top. Justice requires recognition of historical and current injustice, an analysis of who has power and who doesn’t, and how that disparity affects people’s lives. Judge Kavanaugh clearly doesn’t understand, or care to understand, any of this. If elevated to the Supreme Court, he will be disastrous for working people, and in fact, for anyone who hasn’t won the social Darwinian free-for-all we live in today.