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Thu Jul 12, 2018, 11:30 AM

Kavanaugh has spent his career protecting polluters, scammers, corporations, and gun sellers


Liberty for Whom?
Brett Kavanaugh has spent his career protecting polluters, scammers, corporations, and gun sellers.

By Mark Joseph Stern
July 11, 20185:41 PM

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.


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