Judge Kavanaugh on work law

Read more of this story here from SCOTUSblog by Charlotte Garden.

Judge Kavanaugh on work law

Charlotte Garden is an associate professor at Seattle University School of Law.

This post analyzes Judge Brett Kavanaugh’s most significant work-law opinions. Although several are already receiving attention and analysis – especially his dissent in a case that arose after a killer whale killed a trainer – Kavanaugh has drafted dozens of other opinions in labor and employment-discrimination cases. Overall, these opinions reflect that Kavanaugh tends to interpret narrowly the limits that work law places on employers, resulting in judicial and agency deference to employers’ decisions. For example, Kavanaugh has interpreted statutes or controlling Supreme Court cases in ways that exclude certain workers from coverage or bar certain types of claims. When he writes in cases in which he parts ways with his colleagues, it is often because he has a more employer-friendly view of the law than they do.

“Playing with dangerous animals”

SeaWorld of Florida v. Perez is already receiving significant attention. The case involved a penalty imposed on SeaWorld following a tragic incident in which a killer whale named Tilikum “grabbed [a trainer] and pulled her … into the pool, refusing to release her.” The trainer drowned; worse, this was the second time Tilikum had killed a trainer. The Department of Labor found, and the Occupational Safety and Health Review Commission and a panel of the U.S. Court of Appeals for the District of Columbia Circuit affirmed, that SeaWorld had violated OSHA’s general duty-clause. The majority held that the commission was not unreasonable in concluding that SeaWorld was aware of the danger posed by working with killer whales in general, and Tilikum in particular, and the company could have taken safety measures that would have lessened the risk to the trainer – including measures that SeaWorld had already implemented by the time the case reached the court.

Kavanaugh dissented, writing that the Department of Labor could not apply the Occupational Safety and Health Act to killer-whale performances (or sports events or entertainment shows). Kavanaugh’s argument was threefold: first, that the DOL had not previously taken jurisdiction over certain inherently dangerous jobs; second, that DOL “irrationally and arbitrarily distinguishe[d]” SeaWorld’s killer-whale show from the NFL or NASCAR; and third, that Congress did not intend OSHA to reach sports and entertainment.

Kavanaugh’s dissent is infused with the idea that employers should be free to decide to market an experience that is dangerous for workers, and workers should be free to participate, without interference from “paternalistic[]” regulators. (Here, there are certain parallels to Justice Neil Gorsuch’s opinion in the “frozen trucker” case, in which Gorsuch described the prospect of waiting in a dangerously cold, disabled truck for help to arrive as an “option” given by the driver’s employer.) For example, Kavanaugh began his opinion by asserting that “participants in [dangerous sports and other activities] want to take part … despite and occasionally because of the known risk of serious injury.” In contrast, he continued, the “bureaucracy at the U.S. Department of Labor has not traditionally been thought of as the proper body to decide whether to … separate the lions from the tamers at the circuit, or the like.”  Later, in the course of expanding on the first of his reasons for reversing the DOL, Kavanaugh wrote that “playing with dangerous animals” was an inherent part of animal shows, and that it was largely up to “[m]anagement and participants” to “decide what their competition or show consists of and how to market it to spectators.”

Labor law cases

Kavanaugh has written a number of opinions reviewing National Labor Relations Board decisions; in many of these cases, he voted to reverse the board.

Agri Processor v. NLRB arose after a meat wholesaler refused to bargain with its employees’ newly elected union, claiming that the election was invalid because a number of the employees who voted in it were not authorized to work in the United States. The timing suggested that the employer may have investigated its employees’ immigration status because it was unhappy with the results of a union election; as the majority opinion, written by Judge David Tatel, noted, “the company claimed that after the election it put the Social Security numbers given by all the voting employees into the Social Security Administration’s online database and discovered that most of the numbers were either nonexistent or belonged to other people.”

The case turned on whether undocumented workers qualify as “employees” under the National Labor Relations Act, an issue that the Supreme Court answered affirmatively in 1984, in Sure-Tan, Inc. v. NLRB. The Agri Processor majority held that Sure-Tan controlled, even though Congress had since amended immigration law (but not the NLRA) to prohibit employers from hiring unauthorized workers; Henderson wrote separately to criticize the outcome, but nonetheless agreed that “we must follow Sure-Tan[].” Kavanaugh dissented, characterizing the issue in the case as follows: “Their immigration status apparently unbeknownst to their employer, illegal immigrant workers voted in a union election and affected the election’s outcome. The employer later discovered that the workers were illegal … and sought to overturn the tainted union election.” In Kavanaugh’s view, Sure-Tan tied “the NLRA’s definition of ‘employee’ to the immigration laws’ prohibition or non-prohibition on employment of illegal immigrant workers.” In other words, he thought Sure-Tan required the court to reconcile the NLRA and immigration law by excluding from NLRA coverage anyone who could not legally be hired in the United States.

Kavanaugh also dissented in Island Architectural Woodwork v. NLRB, in which the court was charged with reviewing the NLRB’s conclusion that an employer, Island, had set up an alter ego in order to evade its obligation to bargain collectively. The new company, Verde, was managed by former employees of Island – including its owner’s two daughters, who also owned a majority stake in the new company. Verde also operated out of a building owned by Island (rent-free for a time), employed former Island employees, and worked with Island to produce a product for Island’s main customer. Further, none of these arrangements were memorialized in contracts until the NLRB began to investigate. That investigation was prompted when Island, whose employees were unionized, asked the union during collective bargaining to “waive any claim to represent workers at Verde.” The union refused, and then Island refused to agree to a CBA.

The board decided that Verde was an alter ego of Island, meaning the existing CBA should have applied to Verde’s employees, and that Island had committed an unfair labor practice by demanding that the union disclaim interest in Verde’s workers as a condition of reaching an agreement. The court majority held that the board’s conclusion was supported by substantial evidence. But Kavanaugh would have decided that the companies were not alter egos, because they lacked common ownership and management, did not share employees, and did not mingle funds. In light of those facts, Kavanaugh wrote that the countervailing considerations on which the board and the majority relied “[did] not remotely support a finding of alter ego status.”

Kavanaugh wrote majority opinions in three significant cases overturning the NLRB; of those, two were unanimous. The outlier was Verizon New England v. NLRB, in which Kavanaugh wrote an opinion in which Judges Karen Henderson and Sri Srinivasan each concurred in part. Verizon arose after a unionized employer ordered three employees to stop displaying pro-union picket signs in the windows of their cars, parked in the company lot. That order would have violated the NLRA, but the employer argued that the applicable collective-bargaining agreement waived the employees’ rights to display the signs. An arbitrator agreed, because the CBA stated that employees would not “picket[] … any of the Company’s premises.”

The union appealed that decision to the NLRB, which at the time upheld arbitral awards that were not “clearly repugnant” to the NLRA. Despite that deferential standard, the board overturned the award, reasoning that the CBA’s purported waiver was not “clear and unmistakable,” as it was required to be, because displaying a sign in a car lacked the “confrontational” aspect that characterizes picketing. Kavanaugh and Henderson voted to reverse the NLRB, with Kavanaugh writing that the “arbitration decision was far from egregiously wrong,” and that the NLRB had previously included stationary signs within the definition of “picket.” (Kavanaugh also interpreted the controlling legal standard in a way that was somewhat more deferential to the Board than did Henderson.) Srinivasan would have affirmed the NLRB’s decision, emphasizing the court’s obligation to defer to reasonable board decisions.

Kavanaugh wrote for a unanimous court, vacating board decisions in both Southern New England Telephone Co. v. NLRB and Venetian Casino Resort v. NLRB. In Southern New England, the court rejected as unreasonable an NLRB decision that AT&T Connecticut committed an unfair labor practice by banning employees from wearing union shirts that said “Inmate” and “Prisoner of AT$T.” Because the NLRA usually protects employees’ right to wear union shirts, the question was whether there were “special circumstances” that justified the ban. Of note, Kavanaugh seemed to limit the deference with which he reviewed the board’s decision, citing an earlier D.C. Circuit decision stating that the board’s “expertise is surely not at its peak in the realm of employer-customer relations.” Kavanaugh credited the employer’s assertion that it believed the shirts might harm its relationship with its customers over the board’s contrary conclusion. And in Venetian Casino, Kavanaugh held that an employer who called the police in good faith to report that union picketers were trespassing on its property was entitled to immunity from unfair-labor-practice liability under the First Amendment doctrine known as Noerr-Pennington immunity. (The court then remanded to determine whether the employer’s call was made in good faith.)

Kavanaugh sometimes wrote in affirmance of the board as well. In New York-New York, LLC v. NLRB, a unanimous panel upheld an NLRB decision that employers cannot “bar employees of an onsite contractor from distributing union-related handbills on the property.” (Henderson concurred to emphasize aspects of the decision, but also joined the majority opinion.) And United Food and Commercial Workers v. NLRB, another unanimous panel affirmed a board decision that employees working in a Wal-Mart meat department were no longer an appropriate bargaining unit once Wal-Mart made the decision to change the department’s responsibilities from cutting meat onsite to selling pre-cut packaged meat.

Finally, Kavanaugh reviewed labor arbitration decisions in a handful of cases. In National Postal Mail Handlers Union v. American Postal Workers Union, Kavanaugh wrote for the majority, enforcing an arbitrator’s “probably erroneous” decision that a jurisdictional dispute between two unions was arbitrable, in light of the deference due to labor arbitrators’ decisions. Then-Chief Judge David Sentelle dissented because, in his view, the award relied on the arbitrator’s “external legal theories” instead of drawing its essence from the contract, as required. And Kavanaugh vacated an arbitrator’s decision in United States Department of the Navy v. Federal Labor Relations Authority – a unanimous decision that turned on the court’s view that the arbitrator’s decision, which required the Navy to bargain with its employees’ union before discontinuing its practice of supplying bottled water, was inconsistent with statutory limits on unnecessary federal spending.

Employment-discrimination cases

Employment-discrimination plaintiffs often have a difficult time winning in federal court, as perhaps reflected in a number of Kavanaugh’s unanimous opinions affirming grants of summary judgment or motions to dismiss to employers in such cases. These cases include Adeyemi v. DC, Baloch v. Kempthorne, Brady v. Office of the Sergeant at Arms, Foote v. Moniz and Johnson v. Interstate Management Corp. Each of these cases was unanimous, although Judge Patricia Millett concurred in Johnson, which involved both discrimination and OSHA claims, indicating that she disagreed with how Kavanaugh characterized the record. In one other case, Jackson v. Gonzales, Kavanaugh wrote for the majority to affirm a grant of summary judgment for the defendant-employer, the federal Bureau of Prisons. Kavanaugh saw the case as a straightforward example of a more qualified candidate being chosen. But Judge Judith  Rogers, dissenting, would have allowed the plaintiff-employee to argue to a jury that the employer’s late-stage identification of a hiring criterion that was not included in the original job listing reflected an attempt to conceal a hiring decision that was infected by racial bias.

Kavanaugh has also written opinions in a number of cases in which he diverged from his colleagues. These fall generally into two categories: first, cases in which Kavanaugh construed the applicable law more narrowly than his colleagues; and second, cases in which Kavanaugh concurred with his colleagues in reversing a grant of summary judgment for an employer, but would have adopted a more bright-line rule about what kinds of incidents can give rise to discrimination suits.

Narrow readings of discrimination law

On three occasions, Kavanaugh disagreed with one or more of his colleagues about the scope of anti-discrimination law. Miller v. Clinton concerned an employee who was fired from his job as a safety inspector at the U.S. embassy in Paris because he reached the age of 65. The State Department did not dispute that account, but argued that the Age Discrimination in Employment Act did not apply to Americans working for the government overseas. Although the ADEA itself does not exempt such workers from its coverage, the government relied on 22 U.S.C. § 2669(c), a provision of the U.S. Code that governs the use of funds by the Secretary of State. That provision states that the secretary may use funds to:

employ individuals or organizations, by contract, for services abroad … and such contracts are authorized to be negotiated, the terms of the contracts to be prescribed, and the work to be performed, where necessary, without regard to such statutory provisions as relate to the negotiation, making, and performance of contracts and performance of work in the United States.

In an opinion by Judge Merrick Garland, the majority held that the most natural reading of this language was as an exemption from certain government-wide procurement regulations, and not from discrimination law. Among other reasons, the majority wrote that the key language had been copied nearly verbatim from an earlier statute, the Foreign Service Buildings Act of 1926, which had been interpreted that way. The majority also thought it unlikely that Congress would exempt a class of employees from anti-discrimination law using such vague language, and viewed the ADEA not as a statute that is “related” to the “performance of work,” but rather as one that bans discrimination on a basis that is “unrelated to the actual performance of work.”

Dissenting, Kavanaugh wrote that Miller’s contract “plainly” fell within the relevant exception because the ADEA “is a ‘statutory provision[]’ that relates to the ‘performance of contracts and performance of work in the United States.’” Kavanaugh viewed this outcome as consistent with congressional policy designed to remove an impediment to hiring U.S. workers – that is, the obligation to comply with laws that would not apply to non-U.S. workers. Kavanaugh also repeatedly took the majority to task, writing that the result was “not a close call,” because the statute was “not remotely ambiguous or difficult to apply in this case.”

In Howard v. Office of the Chief Administrative Officer of the U.S. House of Representatives, the court considered whether the Constitution’s speech or debate clause barred an employment discrimination and retaliation suit against the Office of the Chief Administrator. The majority allowed the suit to proceed, reasoning that the plaintiff’s theory of the case did not require the factfinder to probe the content of speech covered by the clause – that is, “legislative acts or the motivation for legislative acts.” That was because the plaintiff did not dispute the underlying sequence of events that the OCAO stated led to her firing; instead, she simply argued that OCAO used those events as a pretext for firing her because of her race.

In contrast, Kavanaugh would have dismissed the plaintiff’s suit based on the likelihood that in order to defend the case effectively, the OCAO would be “forced to produce [] evidence of legislative activities.” Kavanaugh also implied that discrimination plaintiffs would be better off with no federal case than a limited one: “A plaintiff saddled with a stipulation that she was really lousy at performing her legislative duties is not a plaintiff who is likely to even get to trial, much less to win, in a discrimination case. So the majority’s opinion’s promise of a federal court forum in these circumstances is a fairly empty promise.”

A similar dynamic played out in Rattigan v. Holder, a Title VII case concerning the scope of Department of the Navy v. Egan, which bars courts from reviewing employment actions based on denials or revocations of security clearances. Tatel, writing for the majority, held that Egan applied to decisions by the FBI’s Security Division, but not to line employees’ decisions to transmit knowingly false information to the division. Kavanaugh, however, read Egan to bar all claims related to any aspect of a potential security-clearance revocation, including reporting. Citing separation-of-powers concerns identified in Egan, Kavanaugh urged the government to file a petition for rehearing en banc. (The government later did so, but the petition was denied.)

Events giving rise to discrimination claims

Although the two cases in this section are thematically similar, the first stands out because Kavanaugh identified it in his Senate Judiciary Committee questionnaire as one of the 10 most significant cases in which he participated. In Ayissi-Etoh v. Fannie Mae, the plaintiff alleged multiple instances of employment discrimination and retaliation, including that a company vice president had once yelled at him to “get out of my office n—–.” In a per curiam opinion, the court reversed a grant of summary judgment to the employer, writing that the “get out of my office” comment “might well have been sufficient to establish a hostile work environment,” but that in any event, that incident combined with Ayissi-Etoh’s other allegations certainly did. Kavanaugh concurred, writing that “being called the n-word by a supervisor … suffices by itself to establish a racially hostile work environment,” because “[n]o other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans.”

And in Ortiz-Diaz v. US Department of Housing and Urban Development, Kavanaugh concurred with an opinion by Rogers reversing a grant of summary judgment for the employer. The case turned in part on whether an employer’s refusal to grant a requested job transfer qualified as an adverse employment action that could form the basis of a Title VII lawsuit. Rogers answered that question “yes” under the circumstances of the case, but Kavanaugh wrote separately to suggest that the court should hold in an appropriate case that discriminatory transfers or transfer denials could always qualify as adverse employment actions.

Kavanaugh’s other work-law cases

Finally, Kavanaugh wrote opinions in a handful of important cases that are not easily grouped.

First, Kavanaugh dissented in National Federation of Federal Employees v. Vilsack, a Fourth Amendment challenge to suspicionless drug testing of all employees working at Job Corps Civilian Conservation Centers run by the Forest Service, a unit within the Department of Agriculture. The majority held that the department had failed to identify any particular need for the testing, such as evidence of a drug problem among staff. However, Kavanaugh would have affirmed summary judgment for the employer, writing that “common sense” supported the program because “[i]n residential schools for at-risk youth … it seems eminently sensible to implement a narrowly targeted drug testing program for the schools’ employees. … [I]ndeed, it would seem negligent not to test.” Conversely, Kavanaugh downplayed employees’ privacy concerns about the testing, which he described as entailing “only a urine sample produced in private” that would “reveal[] only whether the employee has used drugs.” (Orin Kerr also wrote about this decision in his post about Kavanaugh’s Fourth Amendment cases, here.)

Second, Kavanaugh has cautioned against finding implicit statutory private rights of action in two cases. In International Union, Security, Police & Fire Professionals of America v. Faye, Kavanaugh dissented from a decision holding that the Labor-Management Reporting and Disclosure Act implicitly creates a private right of action allowing unions to sue officers who breach their fiduciary duties to the union. And he likewise refused to find an implied cause of action in Section 11(c) of the Occupational Safety and Health Act in Johnson v. Interstate Management Co., in an opinion that was unanimous on that point.

Retired Justice Anthony Kennedy was relatively inclined to defer to employers and to interpret work law narrowly. The safe prediction is that, if confirmed, Kavanaugh will do the same, or perhaps take the law in an even more employer-oriented direction. Of course, the usual caveats apply – it is impossible to say with certainty what a justice will ultimately do on the Supreme Court. But Kavanaugh’s opinions to date reflect a general skepticism about agencies or courts second-guessing employers’ decisions, and a lack of skepticism about the employers’ decisions themselves – giving employees and unions cause for concern.

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Judge Kavanaugh and justiciability

Read more of this story here from SCOTUSblog by Aaron Nielson.

Judge Kavanaugh and justiciability

Aaron Nielson is an associate law professor at Brigham Young University and the weekly author of D.C. Circuit Review–Reviewed at the Notice & Comment Blog.

The U.S. Court of Appeals for the District of Columbia Circuit is an unusual court. Because it disproportionately hears lawsuits involving the United States, it often wades into the “famously murky” waters of the political-question doctrine, as well as the equally murky doctrines of standing, final agency action, and ripeness and mootness. In fact, the local rules require parties in “direct review” cases—cases in which challenges to an administrative agency action must be brought directly in the D.C. Circuit, instead of in a district court first—to address standing. All of these issues involve questions of justiciability: whether, as a threshold matter, a federal court has the authority at all to decide the legal merits of a case. I can attest, moreover, that the D.C. Circuit takes justiciability seriously. When I was a clerk, a judge promised to take any clerk to lunch who found a meritorious, unbriefed justiciability issue.

It is safe to say that Judge Brett Kavanaugh has spent untold hours thinking about justiciability. When I teach the political question doctrine, I assign the en banc decision in El-Shifa Pharmaceutical Industries Co. v. United States, a case I discuss below about a 1998 U.S. missile strike on a Sudanese pharmaceutical plant. Kavanaugh’s concurrence is well worth your time.

For this post, I’ve been asked to survey Kavanaugh’s justiciability opinions and consider how his confirmation might change the Supreme Court’s approach to these issues. I don’t think he would change it all that much. For one thing (to be sure, with some notable exceptions), there is often a great deal of consensus among the justices on justiciability, so even if Kavanaugh were a revolutionary (and he’s not), he wouldn’t be the swing vote anyway. I’m also not sure there would be much difference between Kavanaugh and Justice Anthony Kennedy for many of these kinds of cases, so even if the court were divided, a Kennedy/Kavanaugh switch wouldn’t shift things. Even so, Kavanaugh’s justiciability opinions merit a read because they show his mind at work.

Article III standing

Kavanaugh has addressed standing many times during his tenure on the D.C. Circuit. “Standing” (and this is a simplification) is the constitutional requirement that before a court can decide the merits of a plaintiff’s legal claim, the plaintiff must show that it is likely that the defendant caused or will cause an actual injury to the plaintiff. In other words, in lawsuits challenging regulations—the D.C. Circuit’s bread and butter—it’s not enough that a person, or a public interest group, or a business is merely upset with a new regulation or believes the regulation is unlawful. Whether a regulation is likely to cause some actual injury can be a very tricky question, but one with high stakes: If a plaintiff lacks standing, the court cannot constitutionally hear the plaintiff’s legal claims, no matter how meritorious. My sense is that although Kavanaugh enjoys thinking through standing puzzles, he understands the stakes for the litigants of a ruling on standing and tries to keep his analysis grounded in common sense.

Even when Kavanaugh rejects a claim, he sometimes uses his discussion of standing to show that he has heard the plaintiff’s argument and taken it seriously. In Howard R.L. Cook & Tommy Shaw Found. ex rel. Black Employees of Library of Cong., Inc. v. Billington, a group of employees sued the Library of Congress for not extending to them the same benefits (such as meeting space, etc.) that it extended to other employee groups. While holding that the group failed to state a claim, Kavanaugh (joined by Judges David Tatel and David Sentelle) stressed that it had standing to sue and that its concern merited meaningful recognition:

The Library argues that plaintiffs have failed to allege an injury in fact because “the privileges to employees who participate … in recognized organizations are insubstantial.” If the Library views the privileges of recognition as so insubstantial, perhaps it would have been better off granting recognition and avoiding litigation. In fact, however, the benefits of recognition are not trivial, and denial of those benefits constitutes an injury in fact.

Nor is this an isolated example. In Coalition for Mercury-Free Drugs v. Sebelius, Kavanaugh (joined by Judges Judith Rogers and Stephen Williams) rejected on standing grounds a challenge to the Food and Drug Administration’s decision to allow “vaccines that contain thimerosal, a mercury-based preservative” but went out of his way to “recognize plaintiffs’ genuine concern.” And in Newdow v. Roberts, the majority dismissed a challenge to the use of the phrase “so help me God” in presidential inaugural ceremonies. Kavanaugh concurred in the judgment, but he would have held that the plaintiffs had standing.

And even when he has sided against challengers, he has kept the door open for them to take another shot. In Public Citizen, Inc. v. National Highway Traffic Safety Administration, Public Citizen maintained that it had standing to challenge a tire-safety standard on the ground that the standard would increase the risk of injury to the organization’s members. Kavanaugh (joined by Judges Sentelle and Raymond Randolph) disagreed: “Under Public Citizen’s theory of probabilistic injury, after an agency takes virtually any action, virtually any citizen—because of a fractional chance of benefit from alternative action—would have standing to obtain judicial review of the agency’s choice.” Nonetheless, Kavanaugh gave Public Citizen another chance to see if it could fit within a narrower theory; Sentelle declined to “join the majority’s decision to allow Public Citizen a further attempt to establish standing.”  The following year, the court (in a per curiam decision) again concluded there was no standing.

Kavanaugh’s approach to standing is generally pretty practical. In Energy Future Coalition v. Environmental Protection Agency, biofuel manufacturers challenged the EPA’s refusal to allow a biofuel to be used as a test fuel. Even though the regulation in question was directed at vehicle manufacturers, not biofuel manufacturers, Kavanaugh (joined by Tatel and Judge Cornelia Pillard) found standing:

If the Government prohibits or impedes Company A from using Company B’s product, does Company B have standing to sue? … [S]uppose the District of Columbia bans or makes it harder for concession stands to sell hot dogs. Does a local hot dog manufacturer have standing to sue? … In such cases, both Company A and Company B are an object of the action (or forgone action) at issue, so there is ordinarily little question that they have standing under Lujan. So it is here.

Similarly, in Hall v. Sebelius, Kavanaugh (joined by Judge Douglas Ginsburg) opened his opinion this way:

This is not your typical lawsuit against the Government. Plaintiffs here have sued because they don’t want government benefits. They seek to disclaim their legal entitlement to Medicare Part A benefits for hospitalization costs. Plaintiffs want to disclaim their legal entitlement to Medicare Part A benefits because their private insurers limit coverage for patients who are entitled to Medicare Part A benefits.

Kavanaugh ruled against the plaintiffs on the merits (as it turns out, you can turn down the money, but not the entitlement to the money—although Judge Karen Henderson disagreed), but he concluded that they had standing “because their private insurance has been curtailed as a direct result of their legal entitlement to Medicare.” Still, Kavanaugh does not think common sense is a substitute for record evidence supporting a particular standing theory. In Communities for a Better Environment v. EPA, Kavanaugh (joined by Williams and Judge Janice Rogers Brown) rejected on standing grounds a challenge to the EPA’s refusal to set a secondary standard for carbon monoxide because he agreed with the agency that the connection to climate change was too speculative: “For the reasons identified by EPA, petitioners’ theory of causation is simply a bridge too far given the current record.”

To be sure, not everyone agrees with every Kavanaugh standing opinion. In In re Navy Chaplaincy, a group of Protestant chaplains sued to enjoin the Navy from allegedly using its retirement program to favor Catholic chaplains. Kavanaugh (joined by Judge Laurence Silberman) concluded there was no standing, explaining (among many other points; this one should be read in full) that “mere personal offense to government action does not give rise to standing to sue.” Rogers sharply dissented: “The court ignores all of this precedent in adopting the novel conception that appellants are not harmed for purposes of standing under the Establishment Clause unless the Navy itself directly uses religious words or symbols as occurred in the religious display cases.”

Kavanaugh also does not always agree with his colleagues. In Morgan Drexen, Inc., v. Consumer Financial Protection Bureau, Rogers, joined by Pillard, dismissed a challenge to the CFPB’s authority on standing grounds. In his short dissent, Kavanaugh stated that the CFPB “is regulating a business that [the attorney] engages in. That is enough for standing. We have a tendency to make standing law more complicated than it needs to be.” And in Grocery Manufacturers Association v. EPA, he disagreed with Sentelle, who ruled that members of the food industry lacked prudential standing (a form of standing that isn’t constitutionally based) to challenge an EPA ethanol rule because it would increase demand for corn: “This is Economics 101 and requires no elaborate chain of reasoning.” (Tatel’s short concurrence is also worth a read.)

The political question doctrine

At least as a matter of vote tallies, it is also unlikely that a Justice Kavanaugh would meaningfully change the Supreme Court’s approach to the political question doctrine (i.e., the doctrine under which some courts will not decide some questions that should be addressed by the other branches). In Zivotofsky v. Clinton, Chief Justice John Roberts (writing for a good chunk of the court) held that determining whether “Jerusalem, Israel” could be included as a birthplace location on a passport was justiciable. On the D.C. Circuit, Kavanaugh—joined by Rogers and Ginsburg—voted (unsuccessfully) to rehear en banc the decision that the Supreme Court later reversed. After Zivotofsky, the Supreme Court’s path may be set for a while.

That said, Kavanaugh’s analysis may win some adherents. In El-Shifa Pharmaceutical Industries Co. v. United States, mentioned above, Kavanaugh—joined in full by then-Chief Judge Sentelle and in part by Ginsburg and Rogers—concurred in an en banc judgment that dismissed claims brought by a pharmaceutical company and its owner after a factory in Sudan was destroyed by a U.S. missile strike. Arguing that the suit should have been dismissed for failure to state a claim rather than on justiciability grounds, Kavanaugh strongly disagreed with both the majority’s decision to apply the political question doctrine and its analysis:

The key point for purposes of my political question analysis is this: Plaintiffs do not allege that the Executive Branch violated the Constitution. Rather, plaintiffs allege that the Executive Branch violated congressionally enacted statutes that purportedly constrain the Executive. … If a court refused to give effect to a statute that regulated Executive conduct, it necessarily would be holding that Congress is unable to constrain Executive conduct in the challenged sphere of action. … Applying the political question doctrine in statutory cases  … would systematically favor the Executive Branch over the Legislative Branch.

Candidly, I’m not sure who is right in El-Shifa; that’s why it is a good case to assign students. And Kavanaugh’s analysis should give pause to those who say he is reflexively pro-executive. The main point of his opinion in El-Shifa is to stress that Congress has a role too.

In Harbury v. Hayden, Kavanaugh (joined by Randolph and Williams) affirmed a dismissal of claims brought by a woman against various U.S. government officials allegedly involved in killing her husband during Guatemala’s civil war in the 1990s. Noting that “[t]he political question doctrine is an important tenet of separation of powers and judicial restraint,” albeit one “notorious for its imprecision,” Kavanaugh applied the doctrine because he concluded that D.C. Circuit precedent compelled the result.

Final agency action

In recent years, the Supreme Court has issued two important—and (mostly) unanimous—decisions on what is reviewable final agency action: U.S. Army Corps of Engineers v. Hawkes Co., Inc. and Sackett v. EPA. In both, the Supreme Court expanded the scope of reviewable decisions. Given that uniformity, it is again unlikely that a Justice Kavanaugh would make much of a difference here.

Nonetheless, Kavanaugh has addressed the topic, and he takes the final agency action requirement seriously. His most important case on this subject may be In re Murray Energy Corp. There, a number of petitioners, including a coalition of states, tried to challenge the EPA’s Clean Power Plan before it was finalized. Kavanaugh (joined by Judge Thomas Griffith) concluded that “[p]roposed rules meet neither of the two requirements for final agency action.” Henderson wrote separately. Similarly, in National Mining Association v. McCarthy, a mining association sought review of an EPA guidance memo. Kavanaugh (joined by Griffith and Judge Sri Srinivasan) concluded there was no final agency action: “One might think that an agency memo entitled ‘Final Guidance’ would be final. But that would be wrong, at least under the sometimes-byzantine case law. An agency action is final only if it is both ‘the consummation of the agency’s decisionmaking process’ and a decision by which ‘rights or obligations have been determined’ or from which ‘legal consequences will flow.’”

Ripeness and Mootness

Finally, I also doubt that a Justice Kavanaugh would fundamentally change the Supreme Court’s approach to ripeness and mootness. “Ripeness” essentially asks whether it’s too early for a court to decide the merits of claim, and “mootness” essentially asks whether it’s too late. Nonetheless, he has issued several noteworthy opinions on the subject.

His most significant ripeness decision is probably State National Bank of Big Spring v. Lew, which reflects a nuanced approach to justiciability. Kavanaugh (joined by Rogers and Pillard), confronted challenges to “the constitutionality of various provisions of the Dodd-Frank Act.” On one hand, he concluded that “a regulated entity” need not violate a law to challenge the constitutionality of an agency’s structure, nor the constitutionality of the president’s appointment of the agency’s director. On the other hand, he rejected the notion that challengers could attack the possible future exercise of an allegedly unconstitutional power when the question of how that power might be used was speculative.

Another noteworthy opinion is Kavanaugh’s dissent in American Bird Conservancy, Inc. v. Federal Communications Commission (per curiam, Rogers and Judge Merrick Garland). The petitioners challenged the agency’s approach to communication towers. Yet the FCC was still evaluating the effects of those towers on birds. Kavanaugh compared the situation to one in which a petitioner challenges an order while the agency is still considering a petition for reconsideration and stressed that “[d]ismissing this case on ripeness grounds would serve the interests of judicial economy, permit the Executive Branch to carefully re-examine and resolve environmental issues related to communications towers and birds on a nationwide basis, and impose minimal hardship on the petitioners who are themselves participating in the nationwide rulemaking proceeding.”

As to mootness, in Hamdan v. United States, Kavanaugh (joined by Sentelle and Ginsburg) addressed whether an appeal of a conviction by a military tribunal was moot once the detainee was released from custody. Kavanaugh analogized to a conviction in an ordinary court, in which case a direct appeal is generally not mooted by release. Ginsburg concurred to note his agreement with Kavanaugh’s reading of precedent but also his discomfort with that precedent. (This opinion presumably will receive some attention for its merits analysis; the mootness aspect, however, is important too.)

Conclusion

There is a lot more that could be said, but this post is long enough. Unless you are deep in the weeds of “Admin Law” and “Fed Courts” (give it a try; it isn’t a bad place to be), justiciability is not the jazziest topic. Here is my bottom-line assessment: Although not everyone will agree with all of his justiciability opinions, Kavanaugh’s views on the whole strike me as pretty mainstream. And that is not a bad thing. Justiciability can be fuzzy (sometimes to a fault), but the D.C. Circuit takes it seriously, and Kavanaugh is no exception. Should he be confirmed, I expect that trend will continue.

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Judge Kavanaugh and justiciability

Read more of this story here from SCOTUSblog by Aaron Nielson.

Judge Kavanaugh and justiciability

Aaron Nielson is an associate law professor at Brigham Young University and the weekly author of D.C. Circuit Review–Reviewed at the Notice & Comment Blog.

The U.S. Court of Appeals for the District of Columbia Circuit is an unusual court. Because it disproportionately hears lawsuits involving the United States, it often wades into the “famously murky” waters of the political-question doctrine, as well as the equally murky doctrines of standing, final agency action, and ripeness and mootness. In fact, the local rules require parties in “direct review” cases—cases in which challenges to an administrative agency action must be brought directly in the D.C. Circuit, instead of in a district court first—to address standing. All of these issues involve questions of justiciability: whether, as a threshold matter, a federal court has the authority at all to decide the legal merits of a case. I can attest, moreover, that the D.C. Circuit takes justiciability seriously. When I was a clerk, a judge promised to take any clerk to lunch who found a meritorious, unbriefed justiciability issue.

It is safe to say that Judge Brett Kavanaugh has spent untold hours thinking about justiciability. When I teach the political question doctrine, I assign the en banc decision in El-Shifa Pharmaceutical Industries Co. v. United States, a case I discuss below about a 1998 U.S. missile strike on a Sudanese pharmaceutical plant. Kavanaugh’s concurrence is well worth your time.

For this post, I’ve been asked to survey Kavanaugh’s justiciability opinions and consider how his confirmation might change the Supreme Court’s approach to these issues. I don’t think he would change it all that much. For one thing (to be sure, with some notable exceptions), there is often a great deal of consensus among the justices on justiciability, so even if Kavanaugh were a revolutionary (and he’s not), he wouldn’t be the swing vote anyway. I’m also not sure there would be much difference between Kavanaugh and Justice Anthony Kennedy for many of these kinds of cases, so even if the court were divided, a Kennedy/Kavanaugh switch wouldn’t shift things. Even so, Kavanaugh’s justiciability opinions merit a read because they show his mind at work.

Article III standing

Kavanaugh has addressed standing many times during his tenure on the D.C. Circuit. “Standing” (and this is a simplification) is the constitutional requirement that before a court can decide the merits of a plaintiff’s legal claim, the plaintiff must show that it is likely that the defendant caused or will cause an actual injury to the plaintiff. In other words, in lawsuits challenging regulations—the D.C. Circuit’s bread and butter—it’s not enough that a person, or a public interest group, or a business is merely upset with a new regulation or believes the regulation is unlawful. Whether a regulation is likely to cause some actual injury can be a very tricky question, but one with high stakes: If a plaintiff lacks standing, the court cannot constitutionally hear the plaintiff’s legal claims, no matter how meritorious. My sense is that although Kavanaugh enjoys thinking through standing puzzles, he understands the stakes for the litigants of a ruling on standing and tries to keep his analysis grounded in common sense.

Even when Kavanaugh rejects a claim, he sometimes uses his discussion of standing to show that he has heard the plaintiff’s argument and taken it seriously. In Howard R.L. Cook & Tommy Shaw Found. ex rel. Black Employees of Library of Cong., Inc. v. Billington, a group of employees sued the Library of Congress for not extending to them the same benefits (such as meeting space, etc.) that it extended to other employee groups. While holding that the group failed to state a claim, Kavanaugh (joined by Judges David Tatel and David Sentelle) stressed that it had standing to sue and that its concern merited meaningful recognition:

The Library argues that plaintiffs have failed to allege an injury in fact because “the privileges to employees who participate … in recognized organizations are insubstantial.” If the Library views the privileges of recognition as so insubstantial, perhaps it would have been better off granting recognition and avoiding litigation. In fact, however, the benefits of recognition are not trivial, and denial of those benefits constitutes an injury in fact.

Nor is this an isolated example. In Coalition for Mercury-Free Drugs v. Sebelius, Kavanaugh (joined by Judges Judith Rogers and Stephen Williams) rejected on standing grounds a challenge to the Food and Drug Administration’s decision to allow “vaccines that contain thimerosal, a mercury-based preservative” but went out of his way to “recognize plaintiffs’ genuine concern.” And in Newdow v. Roberts, the majority dismissed a challenge to the use of the phrase “so help me God” in presidential inaugural ceremonies. Kavanaugh concurred in the judgment, but he would have held that the plaintiffs had standing.

And even when he has sided against challengers, he has kept the door open for them to take another shot. In Public Citizen, Inc. v. National Highway Traffic Safety Administration, Public Citizen maintained that it had standing to challenge a tire-safety standard on the ground that the standard would increase the risk of injury to the organization’s members. Kavanaugh (joined by Judges Sentelle and Raymond Randolph) disagreed: “Under Public Citizen’s theory of probabilistic injury, after an agency takes virtually any action, virtually any citizen—because of a fractional chance of benefit from alternative action—would have standing to obtain judicial review of the agency’s choice.” Nonetheless, Kavanaugh gave Public Citizen another chance to see if it could fit within a narrower theory; Sentelle declined to “join the majority’s decision to allow Public Citizen a further attempt to establish standing.”  The following year, the court (in a per curiam decision) again concluded there was no standing.

Kavanaugh’s approach to standing is generally pretty practical. In Energy Future Coalition v. Environmental Protection Agency, biofuel manufacturers challenged the EPA’s refusal to allow a biofuel to be used as a test fuel. Even though the regulation in question was directed at vehicle manufacturers, not biofuel manufacturers, Kavanaugh (joined by Tatel and Judge Cornelia Pillard) found standing:

If the Government prohibits or impedes Company A from using Company B’s product, does Company B have standing to sue? … [S]uppose the District of Columbia bans or makes it harder for concession stands to sell hot dogs. Does a local hot dog manufacturer have standing to sue? … In such cases, both Company A and Company B are an object of the action (or forgone action) at issue, so there is ordinarily little question that they have standing under Lujan. So it is here.

Similarly, in Hall v. Sebelius, Kavanaugh (joined by Judge Douglas Ginsburg) opened his opinion this way:

This is not your typical lawsuit against the Government. Plaintiffs here have sued because they don’t want government benefits. They seek to disclaim their legal entitlement to Medicare Part A benefits for hospitalization costs. Plaintiffs want to disclaim their legal entitlement to Medicare Part A benefits because their private insurers limit coverage for patients who are entitled to Medicare Part A benefits.

Kavanaugh ruled against the plaintiffs on the merits (as it turns out, you can turn down the money, but not the entitlement to the money—although Judge Karen Henderson disagreed), but he concluded that they had standing “because their private insurance has been curtailed as a direct result of their legal entitlement to Medicare.” Still, Kavanaugh does not think common sense is a substitute for record evidence supporting a particular standing theory. In Communities for a Better Environment v. EPA, Kavanaugh (joined by Williams and Judge Janice Rogers Brown) rejected on standing grounds a challenge to the EPA’s refusal to set a secondary standard for carbon monoxide because he agreed with the agency that the connection to climate change was too speculative: “For the reasons identified by EPA, petitioners’ theory of causation is simply a bridge too far given the current record.”

To be sure, not everyone agrees with every Kavanaugh standing opinion. In In re Navy Chaplaincy, a group of Protestant chaplains sued to enjoin the Navy from allegedly using its retirement program to favor Catholic chaplains. Kavanaugh (joined by Judge Laurence Silberman) concluded there was no standing, explaining (among many other points; this one should be read in full) that “mere personal offense to government action does not give rise to standing to sue.” Rogers sharply dissented: “The court ignores all of this precedent in adopting the novel conception that appellants are not harmed for purposes of standing under the Establishment Clause unless the Navy itself directly uses religious words or symbols as occurred in the religious display cases.”

Kavanaugh also does not always agree with his colleagues. In Morgan Drexen, Inc., v. Consumer Financial Protection Bureau, Rogers, joined by Pillard, dismissed a challenge to the CFPB’s authority on standing grounds. In his short dissent, Kavanaugh stated that the CFPB “is regulating a business that [the attorney] engages in. That is enough for standing. We have a tendency to make standing law more complicated than it needs to be.” And in Grocery Manufacturers Association v. EPA, he disagreed with Sentelle, who ruled that members of the food industry lacked prudential standing (a form of standing that isn’t constitutionally based) to challenge an EPA ethanol rule because it would increase demand for corn: “This is Economics 101 and requires no elaborate chain of reasoning.” (Tatel’s short concurrence is also worth a read.)

The political question doctrine

At least as a matter of vote tallies, it is also unlikely that a Justice Kavanaugh would meaningfully change the Supreme Court’s approach to the political question doctrine (i.e., the doctrine under which some courts will not decide some questions that should be addressed by the other branches). In Zivotofsky v. Clinton, Chief Justice John Roberts (writing for a good chunk of the court) held that determining whether “Jerusalem, Israel” could be included as a birthplace location on a passport was justiciable. On the D.C. Circuit, Kavanaugh—joined by Rogers and Ginsburg—voted (unsuccessfully) to rehear en banc the decision that the Supreme Court later reversed. After Zivotofsky, the Supreme Court’s path may be set for a while.

That said, Kavanaugh’s analysis may win some adherents. In El-Shifa Pharmaceutical Industries Co. v. United States, mentioned above, Kavanaugh—joined in full by then-Chief Judge Sentelle and in part by Ginsburg and Rogers—concurred in an en banc judgment that dismissed claims brought by a pharmaceutical company and its owner after a factory in Sudan was destroyed by a U.S. missile strike. Arguing that the suit should have been dismissed for failure to state a claim rather than on justiciability grounds, Kavanaugh strongly disagreed with both the majority’s decision to apply the political question doctrine and its analysis:

The key point for purposes of my political question analysis is this: Plaintiffs do not allege that the Executive Branch violated the Constitution. Rather, plaintiffs allege that the Executive Branch violated congressionally enacted statutes that purportedly constrain the Executive. … If a court refused to give effect to a statute that regulated Executive conduct, it necessarily would be holding that Congress is unable to constrain Executive conduct in the challenged sphere of action. … Applying the political question doctrine in statutory cases  … would systematically favor the Executive Branch over the Legislative Branch.

Candidly, I’m not sure who is right in El-Shifa; that’s why it is a good case to assign students. And Kavanaugh’s analysis should give pause to those who say he is reflexively pro-executive. The main point of his opinion in El-Shifa is to stress that Congress has a role too.

In Harbury v. Hayden, Kavanaugh (joined by Randolph and Williams) affirmed a dismissal of claims brought by a woman against various U.S. government officials allegedly involved in killing her husband during Guatemala’s civil war in the 1990s. Noting that “[t]he political question doctrine is an important tenet of separation of powers and judicial restraint,” albeit one “notorious for its imprecision,” Kavanaugh applied the doctrine because he concluded that D.C. Circuit precedent compelled the result.

Final agency action

In recent years, the Supreme Court has issued two important—and (mostly) unanimous—decisions on what is reviewable final agency action: U.S. Army Corps of Engineers v. Hawkes Co., Inc. and Sackett v. EPA. In both, the Supreme Court expanded the scope of reviewable decisions. Given that uniformity, it is again unlikely that a Justice Kavanaugh would make much of a difference here.

Nonetheless, Kavanaugh has addressed the topic, and he takes the final agency action requirement seriously. His most important case on this subject may be In re Murray Energy Corp. There, a number of petitioners, including a coalition of states, tried to challenge the EPA’s Clean Power Plan before it was finalized. Kavanaugh (joined by Judge Thomas Griffith) concluded that “[p]roposed rules meet neither of the two requirements for final agency action.” Henderson wrote separately. Similarly, in National Mining Association v. McCarthy, a mining association sought review of an EPA guidance memo. Kavanaugh (joined by Griffith and Judge Sri Srinivasan) concluded there was no final agency action: “One might think that an agency memo entitled ‘Final Guidance’ would be final. But that would be wrong, at least under the sometimes-byzantine case law. An agency action is final only if it is both ‘the consummation of the agency’s decisionmaking process’ and a decision by which ‘rights or obligations have been determined’ or from which ‘legal consequences will flow.’”

Ripeness and Mootness

Finally, I also doubt that a Justice Kavanaugh would fundamentally change the Supreme Court’s approach to ripeness and mootness. “Ripeness” essentially asks whether it’s too early for a court to decide the merits of claim, and “mootness” essentially asks whether it’s too late. Nonetheless, he has issued several noteworthy opinions on the subject.

His most significant ripeness decision is probably State National Bank of Big Spring v. Lew, which reflects a nuanced approach to justiciability. Kavanaugh (joined by Rogers and Pillard), confronted challenges to “the constitutionality of various provisions of the Dodd-Frank Act.” On one hand, he concluded that “a regulated entity” need not violate a law to challenge the constitutionality of an agency’s structure, nor the constitutionality of the president’s appointment of the agency’s director. On the other hand, he rejected the notion that challengers could attack the possible future exercise of an allegedly unconstitutional power when the question of how that power might be used was speculative.

Another noteworthy opinion is Kavanaugh’s dissent in American Bird Conservancy, Inc. v. Federal Communications Commission (per curiam, Rogers and Judge Merrick Garland). The petitioners challenged the agency’s approach to communication towers. Yet the FCC was still evaluating the effects of those towers on birds. Kavanaugh compared the situation to one in which a petitioner challenges an order while the agency is still considering a petition for reconsideration and stressed that “[d]ismissing this case on ripeness grounds would serve the interests of judicial economy, permit the Executive Branch to carefully re-examine and resolve environmental issues related to communications towers and birds on a nationwide basis, and impose minimal hardship on the petitioners who are themselves participating in the nationwide rulemaking proceeding.”

As to mootness, in Hamdan v. United States, Kavanaugh (joined by Sentelle and Ginsburg) addressed whether an appeal of a conviction by a military tribunal was moot once the detainee was released from custody. Kavanaugh analogized to a conviction in an ordinary court, in which case a direct appeal is generally not mooted by release. Ginsburg concurred to note his agreement with Kavanaugh’s reading of precedent but also his discomfort with that precedent. (This opinion presumably will receive some attention for its merits analysis; the mootness aspect, however, is important too.)

Conclusion

There is a lot more that could be said, but this post is long enough. Unless you are deep in the weeds of “Admin Law” and “Fed Courts” (give it a try; it isn’t a bad place to be), justiciability is not the jazziest topic. Here is my bottom-line assessment: Although not everyone will agree with all of his justiciability opinions, Kavanaugh’s views on the whole strike me as pretty mainstream. And that is not a bad thing. Justiciability can be fuzzy (sometimes to a fault), but the D.C. Circuit takes it seriously, and Kavanaugh is no exception. Should he be confirmed, I expect that trend will continue.

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With Kavanaugh hearing set, Senate releases records

Read more of this story here from SCOTUSblog by Amy Howe.

With Kavanaugh hearing set, Senate releases records

Although the battle over records related to Judge Brett Kavanaugh’s tenure in the George W. Bush White House continues, the Senate Judiciary Committee has recently released over 100,000 pages of documents. The first batch of documents, released last week, contained over 5,000 pages of emails from Kavanaugh’s stint as an associate White House counsel, a position in which he served from January 2001 until 2003. Hundreds (if not thousands) of pages from the initial batch of documents are completely nonsubstantive, made up of – for example – email headers from mass emails and computerized legal alerts to which Kavanaugh subscribed. Many other emails are somewhat cryptic, giving the distinct impression that staffers were trying to avoid getting into too much substantive discussion over email. But the emails also provide a detailed look into the operation of the White House counsel’s office, including the extent to which the lawyers’ work is often enmeshed with politics. And the emails are likely to provide fodder for members of the Senate Judiciary Committee to question Kavanaugh about his role in the Bush administration’s war on terror when the confirmation hearing begins in early September.

The emails indicate that the White House counsel’s office runs, as another White House attorney described it in a draft of a speech that appeared in Kavanaugh’s emails, much like a small law firm. At the beginning of the Bush administration, the “managing partner” was Alberto Gonzales, a former Texas judge; an early email appeared to instruct White House lawyers not to schedule meetings with Gonzales over lunch because “Al” “doesn’t do lunch.” Another email indicated that when a new lawyer in the office started, the veterans tried to offload the less desirable parts of their portfolios onto the newcomer.

While Kavanaugh was a White House lawyer, his portfolio was eclectic, ranging from participating in the Bush administration’s efforts to select new federal judges and ensure their confirmation to being the office’s in-house ethics expert. Kavanaugh fielded a steady drumbeat of questions regarding ethics issues, involving everything from approving invitations for political events at the White House to signing off on what kind of stationery to use for graduate school recommendations and the use of private planes by White House officials for political travel. Perhaps ironically, the preservation of presidential records was also part of Kavanaugh’s portfolio, with another White House lawyer jokingly referring to him as “Mr. Presidential Records”: Kavanaugh weighed in, for example, on whether White House official Josh Bolten could have his Lotus Notes email database downloaded to a CD before his email was converted to Outlook.

After the September 11, 2001, terrorist attacks, Kavanaugh’s work came to include a variety of issues related to the country’s response. He was involved in or received requests regarding compensation for victims of the attacks, liability for airplane manufacturers, and (maybe most significantly) the drafting of talking points for anti-terrorism laws. Kavanaugh received an email about John Walker Lindh, the American captured as an enemy combatant in Afghanistan, from Ben Wittes, now a prominent national security expert who was at the time a member of the editorial board at the Washington Post; Kavanaugh passed off Wittes’ question to others, but Kavanaugh clearly seemed aware of the situation. Kavanaugh also worked on the USA Patriot Act, a law passed in the wake of the attacks that gave the government (among other things) new surveillance powers – a fact that came out in the context of an email about a Capitol Hill staffer applying to the White House counsel’s office. (Kavanaugh’s emails also show that, after the September 11 attacks, he was one of many senior White House staffers who received an email from Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas. Ginni Thomas, then at the Heritage Foundation, wrote that her “prayers and support are heightened for each of you in the Bush administration. It is my personal belief that God has you here for a reason.”)

Although Kavanaugh was acting as a White House lawyer, his work often overlapped closely with politics. One email, for example, suggests that Kavanaugh was involved in meetings regarding “asset deployment,” which a 2007 Washington Post article described as a strategy of coordinating official announcements, trips and grants to promote the Bush administration’s  agenda and re-election. And in an email to Don Willett, then an official at the Department of Justice but now a judge on the U.S. Court of Appeals for the 5th Circuit best known for his prolific use of Twitter while a justice on the Texas Supreme Court, Kavanaugh asked whether any “Clinton judicial appointees who had been state judges” had received contributions from Enron, the energy company that collapsed after its widespread accounting-fraud scheme became public.

The emails also show that a day in the life of a White House lawyer was a long one: Kavanaugh often began emailing shortly after 6 a.m. and would continue to do so until after midnight. In a 2002 email, Kavanaugh summarized a typical day, which started with a senior staff meeting at 7:30 a.m. and continued with several more meetings (including a “message meeting”).

The emails sometimes reflect the minutiae of day-to-day life working in the White House, including updates on parking passes, efforts to expand the capacity of Kavanaugh’s voicemail or to hunt down library  books checked out of the Department of Justice, bills for the food that Kavanaugh ate during a stay at Camp David (“I had 3 meals and some drinks and snack out of the refrigerator,” wrote Kavanaugh) and arrangements to interview paralegals. Other emails are strictly personal, such as those from Ashley Estes, Bush’s personal secretary, whom Kavanaugh would marry in 2004, inquiring about when Kavanaugh might be free for dinner or whether she should RSVP for a Republican National Committee gala.

This post was originally published at Howe on the Court.

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SCOTUS Map: Summer 2018

Read more of this story here from SCOTUSblog by Victoria Kwan.

SCOTUS Map: Summer 2018

The Supreme Court is in a liminal state this summer. With the departure of Justice Anthony Kennedy, and the confirmation fight over his successor stretching into a second month, the court finds itself suspended between the end of one era and the dawn of the next. It is little wonder, then, that the justices on the speaking circuit are fielding questions about changes both big and small. Audiences at judicial conferences, lectures and post-theater talkbacks want to know: What do the justices see on the horizon — for themselves and for the institution?

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The justices deployed a variety of tactics in handling such queries, ranging from serene acceptance of the things they cannot change (everyone on the subject of Kennedy’s retirement), vigorous defense of the status quo (Chief Justice John Roberts and Justice Elena Kagan on cameras in the courtroom, Justice Ruth Bader Ginsburg on term limits), defiance (Ginsburg on her own retirement), and outright refusal to answer (Justice Stephen Breyer on the erosion of norms in the confirmation process).

The chief justice, in attendance at the U.S. Court of Appeals for the 4th Circuit’s Judicial Conference in White Sulphur Springs, West Virginia, on June 29, described his outgoing colleague Kennedy as “an extraordinary man and extraordinary jurist,” “deeply committed to collegiality and civil discourse” and “very keen on improving civic engagement and making sure people [understand] their heritage.”

Asked about recent studies showing that female justices and advocates are interrupted more frequently during oral arguments, Roberts pushed back against the idea that sexism animated these interruptions and offered some insight into his role as the court’s referee:

I follow a very strict rule when two justices are trying to talk at the same time. Like everything else in the building, we go by seniority. So I will call upon the more senior justice, whether it’s Justice Kennedy or Justice Ginsburg. The other women we have on the bench are more junior, so if there’s an interruption when somebody else is asking a question, it’s more likely to be deferred in favor of the more senior justice, as a general rule. But other things to take into it–that I think just the number of interruptions is hard to capture–if someone has been talking an extended period of time, then I might let another justice interrupt the questioner, just to balance things out. And also, even topically: if the questioning has been on one particular issue, and I know the other justices want to get in on another thing, I might let things flow that way.

Roberts conceded, however, that “it is something, I think, if people are pointing it out, it is something we have to be very sensitive to and keep an eye on it.”

On the subject of televising oral arguments, Roberts claimed that the court is already the “most transparent” branch in government. “I don’t know what institution has been improved by being televised. I know a lot that have been harmed by it, and my judgment is that it has the potential of hurting the Court… I don’t want to have to think, OK, how would that sound to however many people watching at home? Are they going to understand the dynamic of what [oral argument is] like? Particularly if you get sound bites plucked out and you don’t realize, he wasn’t really saying this, that was a hypothetical that was posed to a lawyer.”

Video of the chief justice’s talk is available on C-SPAN.

At least two of the justices booked teaching gigs in Italy this July. Justice Neil Gorsuch co-taught a course on national security and separation of powers in Padua, Italy, as part of the George Mason University Antonin Scalia Law School’s National Security Institute, while Ginsburg taught at the Loyola University Chicago School of Law’s Rome Study Law Abroad program.

In addition to Europe, Ginsburg also traveled to Israel for a string of engagements. On July 4, she appeared in Tel Aviv to accept the inaugural Genesis Lifetime Achievement Award from the Genesis Prize Foundation, an event that Andrew Hamm covered for this blog. The next day, Ginsburg went to Jerusalem for a screening of the documentary “RBG,” followed by a conversation with former Israeli Supreme Court President Dorit Beinisch at the United States Embassy on July 6. Coverage of the “RBG” screening and the Beinisch discussion comes from the Jewish Telegraphic Agency and Haaretz, respectively.

Ginsburg was back in the United States by the end of the month, participating in a July 29 talkback session after a New York performance of the play “The Originalist.” There, she stated her intention to remain on the bench for at least another five years. Whereas Ginsburg once used Justice Louis Brandeis (who retired at 82 years of age) as a benchmark, she now looks to a more recent justice as inspiration. “I’m now 85. My senior colleague, Justice John Paul Stevens—he stepped down when he was 90, so I think I have about at least five more years.” According to CNN, Ginsburg also dismissed the idea of abolishing lifetime tenure. “You can’t set term limits, because to do that you’d have to amend the Constitution… we hold our offices during good behavior. And most judges are very well-behaved.” The Associated Press and American Theatre carried additional coverage of Ginsburg’s remarks.

On July 31, Ginsburg spoke to congressional interns in Washington as part of the Committee on House Administration and the Senate Committee on Rules and Administration’s Summer Intern Lecture Series.

The next day, she gave her annual overview of the preceding term, hosted by Duke Law. Ginsburg began by noting that Kennedy announced his retirement at the court’s closing conference. “I will miss the pleasure of [Justice Kennedy’s] company at our conference table, his helpful suggestions on circulating opinions, his recommendations on art exhibitions to visit with my chambers staff, and much more.” While on the subject of changes at the court, Ginsburg also made sure to point out the court’s embrace of electronic filing, and its greater-than-usual number of high-profile disputes, this past term. “After a term of challenging cases and issues, and an unusually high number of 5-4 decisions, as I see it, we’ve earned our summer break,” the justice declared. “I hope next term we will get back to our usual 15% sharp division, rather than 40%.” Video of Ginsburg’s discussion is online, with media coverage coming from the New York Times, The National Law Journal and Duke Today.

At The Aspen Institute’s McCloskey Speaker Series on July 7, Breyer was asked what he wants the American people to keep in mind as the confirmation process for a new nominee begins. Breyer responded: “[The Constitution] lays out some frontiers… Within those frontiers, which are broad, people make up their own minds. And that’s why if you don’t like what’s going on, you go to the ballot box.” Breyer cheerfully refused to answer questions about his feelings on the obstructed Supreme Court nomination of Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit, but he did dispense advice for remaining civil at work: “If I feel heated, and I might, in some case, the thing for me to do is to sit there like this” — and here Breyer assumed a placid stance, with his hands folded — “and in the evening, I tell [my wife], ‘I felt heated.’” Video is available on YouTube. The Aspen Times and the National Law Journal covered the appearance.

On July 13, Kagan spoke to congressional interns (as part of the same series that Ginsburg had participated in earlier). A couple of weeks later, during a Q&A session organized by the University of Chicago Institute of Politics, a student inquired what Kagan thought of the “precedent” of not confirming a Supreme Court justice in an election year. Kagan pushed back against the idea that this was, in fact, a precedent: “It’s hard to know what exactly the precedent is. These rules, they change a lot. It all depends. There might be an election year in which somebody will say, that’s the rule, and the next election year, somebody will say, that’s not the rule. It wouldn’t depend, I’m saying, on that rule existing for a long time. It seems to be a little more case-specific than that.”

She then pointed out the increasing partisanship of the Supreme Court confirmation process. Citing Senate votes on controversial and outspoken justices like Ginsburg and Justice Antonin Scalia, Kagan lamented:

From the Court’s point of view, it was a lot nicer and a lot better when everybody was confirmed by these lopsided votes… There have definitely been periods where the expectation has been, if you have a certain set of qualifications and if you look like you’re going to be a responsible judge–even if somebody thinks there’s going to be some set of rulings which they’ll disagree with—the expectation was that nonetheless, the President was entitled to his Supreme Court bid. That appears not to be the case anymore, and it’s hard to know how to get back to that. There’s so much tit-for-tat that goes on in these processes. Everybody has their list of times that they’ve been wronged. Republicans have their list, Democrats have their list, and they seem to be, over time, ratcheting up the level of conflict rather than trying to find ways to ratchet it down.

On bringing cameras into the courtroom, Kagan echoed the chief justice’s remarks at the 4th Circuit judicial conference: “I think the Court is going to try and resist that … Is there any informed person in the world who thinks that Congressional hearings became better when they put cameras inside those hearing rooms? The answer to that is no. Cameras in a Congressional hearing room have worked no end of damage to the seriousness of those proceedings… People can use video in ways that might be quite damaging to the way we view our process.”

CNN and The Chicago Maroon reported on Kagan’s appearance. Audio is posted on YouTube.

Justice Sonia Sotomayor traveled to Mobile, Alabama, for the August 9 keel authentication ceremony of an Expeditionary Fast Transport ship that will be known as the USNS Puerto Rico. As the ship’s sponsor, Sotomayor welded her initials into the keel plate. According to AL.com, the justice spoke about her family’s history of service in the U.S. armed forces: “We serve Puerto Rico proudly and serve the United States even more proudly.” Additional coverage comes from the Naval Sea Systems Command.

As for the man whose departure may alter the course of the court for generations to come: Kennedy, who officially took senior status on July 31, spent his summer returning to places he loves, co-teaching at McGeorge School of Law’s Salzburg, Austria program and taking on several speaking engagements in his home state of California.

As reported by the San Francisco Chronicle, Kennedy spoke at the Bohemian Club’s annual retreat in Monte Rio on July 20. A week later, at the U.S. Court of Appeals for the 9th Circuit’s Judicial Conference in Anaheim, he was asked what he planned to do with his time as a retired justice. Kennedy mused about “special assignments for the Chief Justice” and “maybe sitting on other circuits,” before noting that criminal justice reform is “very high on my agenda of things to do.” Solitary confinement is “wrong,” he explained, and “our sentences in this country are eight times longer than sentences for the comparative crimes in England and Western Europe. So we must always think about improving the rule of law.” Video of the discussion is available on C-SPAN.

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Empirical SCOTUS: The big business court

Read more of this story here from SCOTUSblog by Adam Feldman.

Empirical SCOTUS: The big business court

The current Supreme Court is friendly toward big business. How friendly? If the court’s trajectory continues, perhaps as friendly as any court dating back to the Lochner era, when laissez-faire policies permeated the court’s rulings. Prominent scholars, most notably Lee Epstein, William Landes and Richard Posner, have found empirical support for the proposition that the current court is more pro-business than previous iterations. (That study was recently updated through the 2015 term.) This post uses data from the 2015 through 2017 terms to add to this discussion. In particular it seeks to locate the trajectory of the court with the possible addition of Judge Brett Kavanaugh for the October 2018 term. Although the court’s right and left sides found themselves on opposite ends of business rulings during the October 2017 term, we might expect an even stronger pro-business court next term with the addition of another likely predictably pro-business justice in Kavanaugh.

The last three years

Not that Justice Anthony Kennedy tended to clash with conservative positions in business rulings. On the contrary, Kennedy authored many decisions that enhanced the power of businesses, including the court’s decision giving corporations First Amendment free speech protection in Citizens United v. Federal Election Commission. Still, for the 2015 through 2017 terms, Kennedy was less pro-business than several of his conservative counterparts.

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This figure was created by coding all of the court’s orally argued cases from the October 2015 through 2017 terms as focused on a business interest or not and then narrowing the scope to cases that pitted a clear business interest against a contrary interest, thus excluding cases with dueling business interests. Sixty-six cases met the narrowed criteria that underlie the construction of the figure above.

The next figure examining majority opinion authorship in pro/anti-business decisions corroborates this account of greater recent conservative support for business interests.

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Three of the more conservative justices – Chief Justice Roberts and Justices Samuel Alito and Neil Gorsuch — only authored pro-business majority opinions during this period within this set of cases. Kennedy was the only conservative justice to write more anti- than pro-business opinions during this period.

An even bigger push for business

While the court continued its pro-business trajectory during the past three terms, it also increased its pro-business momentum over this period. This increase is evident based on the court’s fraction of pro-business rulings. The following figure looks at the number of cases the justices heard across the 2015 through 2017 terms that contained pro- and anti-business interests as well as the percentage of these decisions that were pro-business.

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Although the court heard fewer business-related cases in the 2017 term, it heard fewer total cases last term as well, making the downshift in business cases more proportional to the court’s actual merits docket. With this curtailed caseload, the court ruled 81.25 percent of time in favor of pro-business interests. Even in the few cases in which the court ruled against business interests, the downstream effects on business interests may not necessarily be negative in the aggregate. One example of this is the court’s decision in South Dakota v. Wayfair. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner in this case.] Although the court’s immediate holding allowed states to tax out-of-state businesses, this decision may end up enhancing competition by leveling the advantage out-of-state businesses had over in-state businesses.

Major interests

Because the stakes in these cases are quite large, the parties marshal support from some of the top Supreme Court advocates. The list of repeat attorneys in this set of cases from 2015 through 2017 is a veritable who’s who of the Supreme Court bar.

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Many of the most notable appellate attorneys now in practice argued several of these cases, with Paul Clement in the lead, followed by fellow veteran Supreme Court attorneys Carter Phillips, David Frederick and Seth Waxman. Although several other big-firm attorneys top this list, the list also includes a handful of attorneys from smaller appellate boutiques, including Peter Stris and Daniel Geyser from the Los Angeles based firm Stris & Maher (Geyser has since started his own boutique, Geyser PC) and Thomas Goldstein, from the D.C.-area firm Goldstein & Russell (who is the publisher of SCOTUSblog).

Amicus support for positions in these cases is another indication that these outcomes matter to a variety of interests. Many of these cases had over 10 merits amicus briefs, while several had 20 or more. The cases in this set with the top number of cumulative merits amicus briefs supporting the petitioners’ or respondents’ positions are displayed below.

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The two cases with the most merits amicus briefs were Friedrichs v. California Teachers Association and Janus v. American Federation of State, County and Municipal Employees , which both involved mandatory union dues. Several patent-related cases, Oil States Energy Services v. Greene’s Energy Group and Impressions Products v. Lexmark International, also made the top of the list, along with two other cases from this past term — Wayfair and Epic Systems Corp. v. Lewis. These cases already make up a large portion of the court’s docket, so we may expect to see an even greater influx of similarly minded petitions as the court moves policy in an even more favorable direction for big businesses. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel on amicus briefs in support of the respondents in Janus and in support of the petitioner in Oil States.]

What to expect

If Kavanaugh is confirmed by the beginning of the 2018 term, we can expect the court to be even further inclined towards ruling in favor of business interests. The first indication of this is from the first figure in this post, which shows that Kennedy was on the lower end of support for business interests over the last three terms for the conservative justices on the court.

Furthermore, although the court sided with pro-business interests more frequently last term than it has in previous terms, many of these were decided by a narrow margin. The following figure shows the difference in majority and minority votes in this set of decisions for the past three terms (the row labeled “1” is for cases decided by a single vote).

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The justices decided eight business-related cases last term by one vote. That was compared to one such decision in both the 2016 and 2015 terms. Although not all of the decisions were based on close votes in the past several terms, we may expect more hotly contested cases on the horizon, especially if the court’s liberal and conservative justices continue to rule in divergent directions.

With this increased polarity, Kavanaugh will in all likelihood provide greater support for pro-business interests. What support is there for this proposition? The best signs are from his written opinions while on the U.S. Court of Appeals for the District of Columbia Circuit. His opinions in the following cases are not only examples of his positions, but cumulatively show a propensity to rule in big businesses’ favor.  These cases constitute the set of pure business cases as coded for a previous post.

In Wu v. Strombler, Kavanaugh wrote an opinion that ruled in favor of Carlyle Capital, which was accused of making material misstatements and omissions to investors about the sale of securities.

Kavanaugh wrote an opinion in favor of ExxonMobil in Metroil v. ExxonMobil, in which Exxon was accused of violating state and federal laws by selling a station leased and operated by Metroil to Anacostia, a gasoline distributor.

Kavanaugh wrote the majority opinion in Stilwell v. Office of Thrift Supervision, in which the D.C. Circuit upheld a regulation that allowed subsidiaries of mutual holding companies to limit minority shareholders to 10 percent of the subsidiary’s minority stock in order to prevent minority holders from taking advantage of voting rules regarding stock benefit plans.

In Pirelli Armstrong Trust v. Raines, Kavanaugh wrote for the majority holding in favor of Fannie Mae in a case dealing with a series of accounting failures reported in corporate earning restatements. Kavanaugh’s opinion upheld the district court’s ruling against allowing shareholder derivative suits filed against Fannie Mae’s directors.

In Doe v. ExxonMobil, Kavanaugh dissented in favor of Exxon in a case in which Exxon was sued under the Alien Tort Statute for aiding and abetting Indonesian officials’ abusive behavior towards Indonesian citizens.

Although Kavanaugh was consistently on the pro-big-business side of these decisions, not all these cases divided the panels ideologically. Several judges appointed by Democrats sided with Kavanaugh in some of the decisions listed above, including Judges Merrick Garland and Harry Edwards in Metroil. This is likely a similar orientation to what Kavanaugh will find on the Supreme Court if he is confirmed — the liberal and conservative justices often rule in the same direction in these cases, even though that pattern was inconsistent last term.

Although the Supreme Court still has a little less than half of its 2018 docket to fill, many cases on the horizon will juxtapose pro and anti-business interests. Attorneys in several of these cases are listed in the attorney figure above, further amplifying this trend of repeat attorneys in this set of cases. These cases include:

From the previous figure of repeat player attorneys, the following attorneys are already counsel of record in the list of cases above (the numbers in parentheses indicate the number of these cases in which these attorneys are already listed): David Frederick (3), Shay Dvoretzky (2), Kannon Shanmugam (2), Peter Stris, Carter Phillips and Andrew Pincus.

The convergence of the factors described above almost ensures that a large portion of the court’s docket will be filled with cases implicating businesses’ interests. If Kavanaugh is confirmed, we can expect the pro-business direction of the court’s rulings to continue and perhaps even to increase in momentum. With five solid conservative votes on the court, the conservative justices will have more control over the court’s docket, as they can predict their desired outcomes each time they congregate as a united front. If they do so they will have great leeway in case selection and in setting the court’s course, whether in favor of pro-business interests or otherwise.

This post was originally published at Empirical SCOTUS.

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Kavanaugh on the executive branch: PHH Corp. v. Consumer Financial Protection Bureau

Read more of this story here from SCOTUSblog by Sarah Harrington.

Kavanaugh on the executive branch: <em>PHH Corp. v. Consumer Financial Protection Bureau</em>

Judge Brett Kavanaugh wrote two opinions in PHH Corp. v. Consumer Financial Protection Bureau: a panel opinion declaring an aspect of the bureau to be unconstitutional and an opinion dissenting from the en banc U.S. Court of Appeals for the District of Columbia Circuit’s decision overruling his panel opinion. In both opinions, Kavanaugh expressed serious skepticism of the regulatory state while celebrating a view of the Constitution that vests in the president an extensive degree of unilateral authority over the executive branch’s enforcement of federal laws. Those views have been lauded by conservative commenters who celebrate Kavanaugh’s “[t]aming” of “the administrative state” — and by the White House, which has praised his record of “protect[ing] American businesses from illegal job-killing regulation.” Commenters on the left see in Kavanaugh’s PHH opinions a hostility to the CFPB’s mission more than to its structure, detecting an anti-consumer bias and general hostility to financial regulation.

In 2010, in response to the financial crisis of 2008, Congress enacted the Dodd-Frank Wall Street Reform Act and Consumer Protection Act. Among other things, the Dodd-Frank Act created a new administrative agency: the Consumer Financial Protection Bureau. Congress charged the CFPB with improving transparency and accountability in the market for consumer financial products, including enforcing a broad array of consumer-protection laws. Because the new agency was created to respond to a financial crisis and would operate in what Congress viewed as a fast-changing world of consumer finance, Congress designed it to become operational promptly and to act efficiently by providing for a single director to lead the CFPB, rather than a multi-member body. And, in order to give the agency some degree of independence and to promote stability and confidence in the country’s financial system, Congress provided that the director will serve a five-year term and can be removed by the president only for cause (i.e., for inefficiency, neglect of duty or malfeasance in office). Independent agencies are nothing new — the Federal Communications Commission, the Securities and Exchange Commission, the Federal Trade Commission, the National Labor Relations Board and the Federal Energy Regulatory Commission all operate independently in the sense that the heads of those agencies are removable only for cause. But each of those agencies is headed by a multi-member body, with the idea that the members of the leadership body will serve as a check on each other.

This case arose out of the CFPB’s 2014 civil enforcement action against PHH Corp., a mortgage lender. CFPB determined that PHH had violated the Real Estate Settlement Procedures Act and the director ultimately entered a $109 million disgorgement order against the company. PHH challenged the order in the D.C. Circuit and a panel of that court vacated the order in an opinion written by Kavanaugh. Over the dissent of Judge Karen Henderson, the divided panel held that providing for-cause protection to the CFPB director violates the separation of powers principles embodied in the Constitution. (The panel also unanimously overturned the director’s interpretation of RESPA.)

The opening line of Kavanaugh’s opinion nicely captures his take on the issue: “This is a case about executive power and individual liberty.” In Kavanaugh’s view, the power of the executive branch to enforce federal laws poses “a grave threat to individual liberty” — a threat that is held in check by the Framers’ decision to “lodge[] full responsibility for the executive power in the President of the United States, who is elected by and accountable to the people.” That structural “unitary Executive,” Kavanaugh explained (borrowing from Justice Antonin Scalia), was intended “to preserve individual freedom.” Although he acknowledged that the president executes the laws with the assistance of subordinate officers, he emphasized that the president “must be able to control subordinate officers in executive agencies” in order “[t]o carry out the executive power and be accountable for the exercise of that power.”

By way of background, the constitutional issues in this case are governed by a small universe of Supreme Court decisions. Two of them — Myers v. United States, decided in 1926, and Humphrey’s Executor v. United States, decided in 1935 — set up a general rule and an exception. The court in Myers struck down a law that prevented the president from removing certain postmasters without the advice and consent of the Senate. In so doing, the court established the principle that the president must have authority to supervise, direct and remove at will subordinate officers in the executive branch. Nine years later, in Humphrey’s Executor, the court established an exception to that rule for independent agencies when it upheld a law giving for-cause protection to FTC commissioners. In the ensuing decades, the court has upheld restrictions on the president’s ability to remove executive officers in a handful of other cases, including 1958’s Wiener v. United States, which upheld for-cause protection for members of the War Claims Commission, and 1988’s Morrison v. Olson, which upheld restrictions on the president’s ability to remove the independent counsel. More recently, in Free Enterprise Fund v. Public Company Accounting Oversight Board, the court in 2010 struck down a restriction on the president’s authority to remove members of the PCAOB (an agency within the SEC), who could be removed only for cause by an order of the SEC, whose members could themselves be removed only for cause.  Notably, Kavanaugh had dissented from the D.C. Circuit decision in Free Enterprise Fund, which upheld the same restrictions.

Applying those precedents, Kavanaugh concluded that the exception in Humphrey’s Executor for independent agencies is limited to agencies headed by multimember bodies. He emphasized that, until recently, no other independent agency has been headed by a single director. In his view, “when measured in terms of unilateral power, the Director of the CFPB is the single most powerful official in the entire U.S. Government, other than the President.” Emphasizing the lack of any “settled historical practice of independent agencies headed by single Directors who possess the substantial executive authority that the Director of the CFPB enjoys,” Kavanaugh explained that the CFPB’s “departure from the settled historical practice requiring multi-member bodies at the helm of independent agencies” “threatens individual liberty.” Writing for the panel, Kavanaugh “conclude[d] that the CFPB is unconstitutionally structured because it is an independent agency headed by a single Director.”

The CFPB (acting through its own attorneys, i.e., without support from the Department of Justice) filed a petition for rehearing en banc and the petition was granted. A divided court left intact the portion of the panel decision addressing RESPA, but overruled the panel’s holding that the CFPB director’s for-cause protection from removal is unconstitutional. The en banc court produced seven different opinions, including an opinion for the court written by Judge Cornelia Pillard and a dissenting opinion from Kavanaugh. Pillard’s opinion emphasized the tradition of independence among executive branch agencies and officers charged with financial regulation and concluded that the CFPB fit well within that tradition. In her view, Congress acted within its authority when it “decided that the CFPB needed a measure of independence and chose a constitutionally acceptable means to protect it.” She explained that the director’s for-cause protection is exactly the same as was approved in Humphrey’s Executor and concluded that “the CFPB Director’s autonomy is consistent with a longstanding tradition of independence for financial regulators, and squarely supported by established precedent.” Pillard rejected the types of liberty concerns advanced by Kavanaugh, noting that “[i]t remains unexplained why we would assess the challenged removal restriction 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 wrote a dissenting opinion that closely tracked his earlier panel opinion.

Although PHH’s journey is over (no party sought Supreme Court review), the constitutional issue it presents may well find its way to the Supreme Court one day soon. Several pending cases in other federal courts of appeals raise the same challenge, including an appeal in the U.S. Court of Appeals for the 2nd Circuit from a district court decision that expressly adopted portions of Kavanaugh’s en banc dissent in PHH and declared the CFPB’s structure to be unconstitutional. And at least one challenge to the Federal Housing Financial Agency — which, like the CFPB, was established in part to respond to the 2008 financial crisis and is headed by a director who is removable only for cause — is working its way through the federal courts. It is safe to say that we can predict how a Justice Kavanaugh would approach those cases.

More generally, we can discern from Kavanaugh’s opinions in PHH a deep skepticism of independent agencies, which he describes as “a headless fourth branch of the U.S. Government” that collectively “pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.” His opinions also reveal a hostility to the idea of an executive branch official who can exercise authority without answering to the president — even when the whole point of that official’s job is to act independently. In PHH, Kavanaugh described the now-defunct “independent counsel experiment” at issue in Morrison as “a mistake,” “an unconstitutional departure from historical practice and a serious threat to individual liberty.” That skepticism could come into play if Kavanaugh were presented with a case involving the special counsel, whom the president cannot fire directly and who is subject to removal by the acting attorney general only for cause.

Kavanaugh’s PHH opinions also shed light on his views about liberty. He plainly views liberty as freedom from regulation, even when that regulation is directed at corporations with the stated purpose of protecting individuals. Pillard explained in her en banc opinion that Congress designed the CFPB based on the view that “markets’ contribution to human liberty derives from freedom of contract, and that such freedom depends on market participants’ access to accurate information, and on clear and reliably enforced rules against fraud and coercion.” That is certainly not Kavanaugh’s view; he sees a threat to liberty in any executive branch official who can act unilaterally and who is not the president.

If Kavanaugh is confirmed to the Supreme Court, we are certain to hear more from him about executive branch authority and individual liberty. And when we do, the themes that run through his PHH opinions are likely to guide his decision-making.

The post Kavanaugh on the executive branch: <em>PHH Corp. v. Consumer Financial Protection Bureau</em> appeared first on SCOTUSblog.

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Judge Kavanaugh and freedom of expression

Read more of this story here from SCOTUSblog by Timothy Zick.

Judge Kavanaugh and freedom of expression

Timothy Zick is the Mills E. Godwin, Jr., Professor of Law at William & Mary Law School.

As Jonathan Adler recently observed, Justice Anthony Kennedy’s “expansive conception of the First Amendment’s protection of freedom of speech is among his most important judicial legacies, marking his jurisprudence from his first days on the Court to his last.” Although it is not clear whether Judge Brett Kavanaugh would compile a similar record on the Supreme Court, we can make a few tentative predictions based on his record in the U.S. Court of Appeals for the District of Columbia Circuit. (Of course, all of the usual caveats associated with predicting the behavior of lower court judges once elevated to the Supreme Court apply.) This post reviews cases in which Kavanaugh either joined or authored opinions concerning freedom of speech and, to a lesser extent, other First Amendment rights (specifically, press and petition). It excludes decisions and opinions in the area of campaign finance, which were discussed in a prior post.

Kavanaugh’s record in First Amendment cases demonstrates a precedent-based or “common law” methodology, one that also relies on the lessons of history regarding free speech, press and petition rights. In substance, his record suggests that Kavanaugh would not expand the speech rights of government employees and might interpret the government speech principle rather broadly. He has also concluded that noncitizens abroad do not enjoy First Amendment rights – an issue the Supreme Court has not directly decided. However, in many contexts, Kavanaugh would likely be a consistent supporter of First Amendment rights. He has emphasized the importance, to democratic self-governance and the search for truth, of robust free speech, press and petition rights. He has adopted an expansive interpretation of editorial and speaker autonomy rights, is generally skeptical of measures that compel speech and association, and views government power to regulate private speech as sharply circumscribed. Looking forward, Kavanaugh’s appointment could have a significant impact in regulatory areas such as telecommunications and data privacy. Notably in this regard, his opinions suggest strong support for the speech rights of corporations, including digital-content providers.

  1. Speech in public forums

Although his record in this area is modest, Kavanaugh has voted to invalidate restrictions on free speech rights in public forums. However, he has made clear that this support does not extend to actions that deface or destroy public property.

In Boardley v. U.S. Department of Interior, Kavanaugh joined an opinion invalidating National Park Service rules that required permits and limited speakers to certain free speech areas. A group seeking to distribute religious tracts near Mount Rushmore National Memorial challenged the rules. The D.C. Circuit declined to hold that all national parks governed by the NPS rules were traditional public forums, where free speech and other First Amendment rights are at their zenith. However, the court concluded that the free speech areas constituted designated public forums for First Amendment purposes. The court held that the regulations were content-neutral, but were not narrowly tailored to further the government’s interests. In particular, the court took issue with application of the rules to individuals and small gatherings, who were particularly burdened by the permit and free speech zone requirements. It concluded that the regulations effectively forbade spontaneous speech in public parks, infringed on individuals’ ability to engage in anonymous speech, and failed to leave open ample alternative forums for expression.

However, in a brief concurring opinion in Mahoney v. Doe, Kavanaugh agreed with the panel that the government could, under a content-neutral District of Columbia law prohibiting the defacement of public property, prohibit anti-abortion protesters from chalking the sidewalks outside the White House. He wrote separately because he did not “want the fog of First Amendment doctrine to make this case seem harder than it is.” “No one,” Kavanaugh wrote, “has a First Amendment right to deface government property.”

  1. Coverage exceptions – defamation and incitement

First Amendment doctrine recognizes certain narrow coverage exceptions, including for communications about public officials or figures that are made with knowledge of their falsity or reckless disregard for their truth (defamation) and speech that incites others to unlawful action (incitement). Kavanaugh has written two defamation opinions and one opinion addressing speech that incites unlawful action.

In Kahl v. Bureau of National Affairs, Inc., Kavanaugh wrote the court’s opinion dismissing a prisoner’s defamation case against the Bureau of National Affairs, which was based on BNA’s reporting on a legal filing in the prisoner’s case. Applying the standards announced in New York Times v. Sullivan, Kavanaugh concluded that the prisoner, who had been convicted of murdering two U.S. marshals, was a “limited purpose public figure.” Thus, he had to demonstrate that BNA had acted with “actual malice.” Kavanaugh concluded that merely alleging falsity was not enough to satisfy this burden. He recognized that “[c]ostly and time-consuming defamation litigation” can chill freedom of speech and press. And he wrote: “To preserve First Amendment freedoms and give reporters, commentators, bloggers, and tweeters (among others) the breathing room they need to pursue the truth, the Supreme Court has directed courts to expeditiously weed out unmeritorious defamation suits.” In dismissing the complaint, Kavanaugh emphasized the First Amendment’s broad protection for the “unfettered interchange” of thoughts and ideas on matters of public concern.

In Abbas v. Foreign Policy Group, LLC, Kavanaugh wrote an opinion holding that questions posed in an article about a foreign leader’s son could not be treated as assertions of fact for purposes of proving defamation. Acknowledging that D.C. law was not clear on whether mere questions can constitute defamatory statements, Kavanaugh resolved the question by looking to the general rule from other jurisdictions. Kavanaugh reasoned:

After all, just imagine the severe infringement on free speech that would ensue in the alternative universe envisioned by Abbas. Is the Mayor a thief? Is the quarterback a cheater? Did the Governor accept bribes? Did the CEO pay her taxes? Did the baseball star take steroids? Questions like that appear all the time in news reports and on blogs, in tweets and on cable shows. And all such questions could be actionable under Abbas’s novel defamation theory.

He concluded that a contrary ruling would “ensnare a substantial amount of speech that is essential to the marketplace of ideas and would dramatically chill the freedom of speech.”

Abbas also addressed the question whether the District of Columbia’s Anti-Strategic Lawsuits Against Public Participation Act applied in federal court. Anti-SLAPP statutes like D.C.’s generally make it easier to dismiss defamation suits at an earlier stage, with the goal of decreasing the chilling effects associated with such litigation. Kavanaugh’s opinion acknowledged the purpose and importance of anti-SLAPP laws to free speech and press rights. His conclusion that the anti-SLAPP law does not apply when a federal court is exercising diversity jurisdiction, which involves a rather tricky federal procedure question, is shared by courts in some other circuits.

Kavanaugh has also authored an opinion applying the First Amendment’s “incitement” standard. In Al Bahlul v. United States, an en banc decision rejecting various constitutional challenges to trial by military commission, Kavanaugh wrote a concurring opinion in which he also addressed Al Bahlul’s claim that he had been prosecuted for political speech. The speech in question consisted of the production and distribution of al Qaeda recruitment videos that encouraged viewers to join al Qaeda and kill Americans. Kavanaugh concluded that the free speech clause does not apply to noncitizens located abroad. Further, even if the free speech clause did apply in these circumstances, he concluded that Al Bahlul’s speech was not covered by the First Amendment because it expressly incited, and was likely to result in, imminent unlawful activity.

  1. Government’s role as employer and speaker

Although the record is thin, Kavanaugh may support existing limits on public employee speech rights. In two cases, he has also taken a relatively broad view of the government’s power when it acts as a speaker rather than as a regulator of speech.

In LeFande v. D.C., Kavanaugh joined an opinion holding that a police reserve officer’s emails to his superiors, in which he cc’d his co-workers, were not protected under the balancing test adopted by the Supreme Court in Pickering v. Board of Education. The district court had held that the emails were government speech and thus not entitled to any First Amendment protection. However, the panel concluded that even if the emails constituted speech by an employee on a matter of public concern, the employer’s interest in promoting office harmony outweighed any interest the employee had in sending them.

In Moore v. Hartman, Kavanaugh disagreed with a panel opinion finding, in a First Amendment retaliation suit, that D.C. law had “clearly established” that an arrest in retaliation for speech is insulated from suit when there is probable cause for the arrest. In a dissenting opinion, Kavanaugh concluded that the law concerning probable cause was not “clearly established” and that defendants were thus entitled to qualified immunity on the First Amendment claim. (The Supreme Court recently ruled that probable cause sometimes, although not always, bars a First Amendment retaliation claim.)

Kavanaugh was also involved in two cases addressing the government speech doctrine. In both cases, he rejected the First Amendment claim.

In DKT International, Inc. v. U.S. Agency for International Development, Kavanaugh joined an opinion holding, in the context of federal grants for HIV/AIDS relief efforts, that the federal government could refuse to fund nongovernmental organizations if they did not certify that they had a policy opposing prostitution and sex trafficking. Under existing U.S. policy, eradicating prostitution and sex trafficking was considered an integral part of the worldwide fight against HIV/AIDS. The D.C. Circuit, applying the principle that when the government communicates it may discriminate based on viewpoint, upheld the funding restriction. (In response to another challenge, the Supreme Court later invalidated the funding restriction, on the ground that it unconstitutionally compelled speech outside the scope of the government funding program.)

In Bryant v. Gates, the D.C. Circuit rejected a challenge to Department of Defense regulations that restricted advertisements in newspapers published under contract with the department and distributed on military bases. The majority resolved the case under public forum doctrine, holding that the newspapers’ advertisement space was a “non-public forum” and that the rules were reasonable and viewpoint-neutral. In a concurring opinion, Kavanaugh wrote that there was “a far easier way to analyze this kind of case under the Supreme Court’s precedents.” He concluded that the content in military-run newspapers and advertisement spaces was the government’s own speech. As he explained: “The military may, for example, permit advertisements that say ‘Support the Troops’ but decline advertisements that say ‘Oppose the Troops.’ If forum analysis applied, however, the military could not maintain that kind of sensible editorial policy.”

  1. Petition rights

The First Amendment’s petition clause, which protects the right “to petition the Government for a redress of grievances,” does not receive much judicial attention. Kavanaugh has written two opinions addressing petition rights, recognizing such rights in one case and declining to do so in the other.

Kavanaugh wrote the opinion in Venetian Casino Resort, L.L.C. v. National Labor Relations Board, which held that the Venetian did not violate the National Labor Relations Act when it called on police officers to arrest employees demonstrating on a walkway in front of its property and to block them from the walkway. The opinion applied the Noerr–Pennington doctrine, under which direct petitions to government are shielded from liability under the NLRA on the ground that they are protected by the First Amendment. Kavanaugh wrote that “the act of summoning the police to enforce state trespass law is a direct petition to government subject to protection under the Noerr-Pennington doctrine.” However, the doctrine does not apply if the petition is a “sham.” Kavanaugh remanded the case to the NLRB to determine whether the Venetian’s petition was genuine.

In We The People Foundation, Inc. v. United States, Kavanaugh wrote an opinion rejecting a petition clause claim. Various individuals who had petitioned Congress and the executive branch with respect to a variety of issues (war, privacy and taxes) alleged that the petition clause entitled them to a response from the federal government. Relying on Supreme Court precedents rejecting similar claims filed against state officials, the D.C. Circuit held that the petition clause does not entitle petitioners to any response from federal officials.

  1. Commercial speech and compelled speech

Kavanaugh has written one significant opinion in a case involving commercial speech. The opinion is noteworthy for two reasons. First, it addressed the scope of protection for commercial speech. Second, it involved a mandatory disclosure, thus implicating rights against compelled speech.

In American Meat Institute v. U.S. Department of Agriculture, a divided panel of the en banc D.C. Circuit upheld a federal regulation that required the meat industry to include “country of origin” information on meat packaging. In Zauderer v. Office of Disciplinarian Counsel of the Ohio Supreme Court, the Supreme Court held that “the States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading.” In American Meat Institute, a group of livestock producers, feedlot operators and meat packers challenged the “country of origin” regulation on First Amendment grounds, arguing that it failed under Zauderer because it amounted to compelled speech that did not advance a permissible regulatory goal. The majority concluded that the mandatory disclosure was justified because the information was valuable to consumers in terms of making informed purchases and relevant to health concerns relating to possible food-borne illnesses.

In a concurring opinion, Kavanaugh concluded that the First Amendment did not bar the “longstanding and commonplace country-of-origin labeling requirements.” He found that the government could not “advance a traditional anti-deception, health, or safety interest in this case.” Rather, it asserted a general interest in “providing consumers with information.” Rejecting that argument, Kavanaugh concurred in the judgment on the ground that country-of-origin labeling was justified “by the Government’s historically rooted interest in supporting American manufacturers, farmers, and ranchers as they compete with foreign manufacturers, farmers, and ranchers.” Thus, he upheld the regulation, but on a different and somewhat narrower ground than the majority.

Some have suggested that Kavanaugh’s concurrence indicates a lack of support for commercial speech rights. However, in addition to emphasizing that “the First Amendment protects commercial speech,” Kavanaugh interpreted Zauderer as denying government “a free pass to spread their preferred messages on the backs of others” owing solely to its interest in providing consumers with information. He concluded that “history and tradition provide no support for that kind of free-wheeling government power to mandate compelled commercial disclosures.” Kavanaugh also explained that Zauderer is “simply an application of Central Hudson Gas & Electric v. Public Svc. Comm. [which provides the general standard for commercial speech regulations], not a different test altogether.” Kavanaugh described the Zauderer standard as “far more stringent than mere rational basis review.” Indeed, he wrote, “Zauderer tightly limits mandatory disclosures to a very narrow class that meets the various Zauderer requirements.”

Regarding mandatory disclosures and compelled speech more generally, Kavanaugh’s concurrence agreed “that the First Amendment imposes stringent limits on the Government’s authority to either restrict or compel speech by private citizens and organizations.” Moreover, in his telecommunications opinions, which are discussed immediately below, Kavanaugh made clear that he supports broad First Amendment rights against compelled speech and association. Thus, the single instance in which he upheld a mandatory commercial disclosure likely tells us little about how he would decide a case involving, for example, compulsory baking of wedding cakes for same-sex couples. Kavanaugh’s general approach to compulsory disclosure laws suggests that he would view such measures skeptically.

  1. Telecommunications and technology

Kavanaugh has written several opinions concerning the First Amendment rights of internet intermediaries, cable providers and other telecommunications networks. His opinions articulate a broad view of First Amendment editorial and speaker-autonomy rights, including for digital-content providers.

The opinion that has received the most attention is Kavanaugh’s dissent from the denial of en banc review in United States Telecom Association v. Federal Communications Commission. A panel of the D.C. Circuit upheld the FCC’s Open Internet Order, which imposed what is commonly referred to as “net neutrality.” In general terms, net neutrality required that internet service providers treat all internet traffic equally or neutrally. Thus, ISPs like AT&TComcast and Verizon were barred from charging more for various activities, such as video streaming, which takes up more bandwidth. Proponents of net neutrality contended that in its absence, the free flow of information on the internet would be adversely affected by a tiered communication system controlled by powerful ISPs. (The FCC reversed its order in December 2017; in January 2018, 21 states filed suit against the FCC challenging the reversal.)

In his dissent from denial of en banc review of the panel opinion, Kavanaugh wrote that the FCC order was not authorized by Congress and undermined the separation of powers. He also argued that even if Congress had authorized net neutrality, “the First Amendment bars the Government from restricting the editorial discretion of Internet service providers, absent a showing that an Internet service provider possesses market power in a relevant geographic market.” Addressing the application of the First Amendment to ISPs, Kavanaugh wrote: “The First Amendment protects an independent media and an independent communications marketplace against takeover efforts by the Legislative and Executive Branches. The First Amendment operates as a vital guarantee of democratic self-government.” He also invoked the Founding era, during which “the First Amendment protected (among other things) the editorial discretion of the many publishers, newspapers, and pamphleteers who produced and supplied written communications to the citizens of the United States.” Kavanaugh concluded that “those foundational First Amendment principles apply to editors and speakers in the modern communications marketplace in much the same way that the principles apply to the newspapers, magazines, pamphleteers, publishers, bookstores, and newsstands traditionally protected by the First Amendment.” If the rule were otherwise, he wrote, the government could “regulate the editorial decisions of Facebook and Google, of MSNBC and Fox, of NYTimes.com and WSJ.com, of YouTube and Twitter.”

In other cases, Kavanaugh has expressed similar views about the First Amendment editorial rights of content providers and telecommunications networks. Thus, in Comcast Cable Communications, LLC v. FCC, he wrote a concurring opinion stating that absent a sufficient showing of market power, the FCC’s interpretation of a regulation that required Comcast and other programming distributors to carry certain content violated the First Amendment. Similarly, in Cablevision Systems Corp. v. FCC, Kavanaugh filed a dissent from the court’s decision upholding an FCC regulation prohibiting exclusive contracts between cable companies and affiliated networks. In both cases, he emphasized that the FCC could not interfere with the content provider’s editorial discretion by compelling it to carry, or prohibiting it from carrying, certain content. The opinions are based on what Kavanaugh referred to as a “straightforward and expansive” First Amendment that applies with full force to “modern means of communication” just as it did to early publishers and pamphleteers.

Some commentators have suggested that these opinions indicate that Kavanaugh may interpret data privacy and other laws in ways that could “alter the digital landscape.” The record, including his opinions in the campaign finance and telecommunications areas, strongly suggests that Kavanaugh will broadly protect the rights of corporate speakers and apply the free speech clause in a variety of regulatory areas, perhaps including data privacy.

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Empirical SCOTUS: A little change will do you good — oral argument interruptions OT2017

Read more of this story here from SCOTUSblog by Adam Feldman.

Empirical SCOTUS: A little change will do you good — oral argument interruptions OT2017

Although female justices have only served on the Supreme Court since 1981, a relatively short slice of the court’s history, gender imbalances have existed in oral argument interruptions for many years, with female justices bearing the brunt of them. These imbalances were identified in a blog post on Empirical SCOTUS, with subsequent commentary from Stephanie Mencimer at Mother Jones. Other articles and scholarly papers (and here) then conducted deeper inspections of these interactions, with one study finding that these gender imbalances even extended to Supreme Court advocates.

Insights from these works became the subject of Justice Sonia Sotomayor’s remarks at the recent American Constitution Society convention. As the results of previous studies have reached a wide audience and, as Sotomayor claims, have been acknowledged by the justices, one might expect that the justices have rectified or attempted to rectify these imbalances.

Before investigating this claim with the 2017 term data, a quick note about the methodology. As with other studies on this subject, this post used a script to note each time a speaker’s remarks ended with a double-dash (“–”) rather than a period. Each speaker’s full speaking turn was coded as one utterance. Utterances end at the close of a sentence, with an interruption, or at the close of a segment of oral argument. If a speaker’s utterance ended with a double dash, then the initial speaker was coded as interruptee and the subsequent speaker was coded as interrupter. The script was developed and implemented by attorney Alexander Kappner.

All actors

Whether or not any changes have had an impact depends on the way we examine the data, but the results are hopeful. Sotomayor was far and away the most interrupted justice for the 2017 term when looking at interruptions by attorneys and justices.

Click graph to enlarge.

Because Justice Stephen Breyer, the second most interrupted justice, spoke more total words at oral arguments this term than Sotomayor, Sotomayor’s words per interruption were much lower than Breyer’s in the aggregate. Beyond the justices, the attorneys interrupted the most (in terms of total interruptions) were Neal Katyal, Paul Clement and Solicitor General Noel Francisco. Only three female advocates made this list of most interrupted attorneys, which is likely more of an artifact of the infrequency with which female attorneys argued this term than of the justices’ propensity to interrupt female attorneys.

One possible explanation for the high number of times Sotomayor was interrupted might relate to the number of times she interrupted others. The next figure looks at the total number of times justices and attorneys interrupted others this term.

Click graph to enlarge.

Sotomayor interrupted others this term far more than any other justice or attorney. Breyer followed suit in this area, as he did for times interrupted. In terms of total interruptions, the numbers appear to reflect a tit-for-tat in which the greatest interrupters were also interrupted the most and tended to have the most speaking opportunities. The attorneys who interrupted others the most times were Francisco, Katyal and Jeffrey Fisher. The only female attorney to make the list of most times interrupting others was Louisiana Solicitor General Elizabeth Murrill.

Just the justices

Looking only at justice-to-justice interruptions shows that a large portion of the interruptions counted above involve attorneys as interrupters or interruptees. The following figures include only interruptions between justices and are based on case averages so that each case is weighted equally (e.g., if Justice A’s interruption rate was 500 words/interruption in Case 1 and 450 words/interruption in Case 2, Justice A’s average words/interruption for the two cases would be 475). The first of these figures looks at the frequency with which a justice was interrupted relative to the number of words spoken by that justice per argument.

Click graph to enlarge.

Breyer, the justice who spoke the most, was interrupted the least frequently according to this metric. After Breyer come Sotomayor and Justice Elena Kagan. Justices Samuel Alito and Neil Gorsuch fall to the middle of this figure, while Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Anthony Kennedy were interrupted most frequently. At first blush this figure makes it seem as though the female justices were not interrupted more frequently than the male justices this term. The other measures support this point.

The figure for justices’ sentences per interruption for interrupted justices appears similar to, although not exactly the same as, the previous figure.

Click graph to enlarge.

Breyer still comes in first with most sentences spoken per interruption. The only changes of the ordering of justices from the words-per-interruption figure pertain to Roberts, Gorsuch and Alito in the middle.

The figure for utterances or talking turns per interruption further supports the point that female justices were not interrupted more frequently than male justices.

Click graph to enlarge.

Sotomayor actually had more utterances per interruption than any of the other justices. Breyer was the second least interrupted justice according to this measure and Kagan was third. Ginsburg was interrupted most frequently when looking at utterances per interruption, with Kennedy coming in as the next most frequently interrupted justice.

The other side of the coin tells a similar tale. When looking at the justices’ words per interruption while focusing on justices as interrupters, we get the following figure:

Click graph to enlarge.

Similar to his frequency as interruptee, Breyer also spoke the most words per interruption when focusing on outward interruptions or when he was the interrupter. Kagan came next, also with a high number of words spoken per outward interruption. The justices who interrupted other justices most frequently when focusing on word count were Kennedy, Ginsburg and Sotomayor.

There are slight differences when looking at sentences per time interrupting.

Click graph to enlarge.

Here, Breyer is also the justice who interrupted other justices the least frequently. Roberts and Kagan switch positions in this figure, as Roberts interrupted other justices less often than Kagan. The most frequent interrupters by sentence count were the same as for word count — Kennedy, Ginsburg and Sotomayor.

Lastly, looking at interruptions by utterance, there is a more substantial shift in the justices’ ordering.

Click graph to enlarge.

Roberts and Alito were the least frequent interrupters by utterance, followed by Kagan, Sotomayor and Breyer, while Kennedy and Ginsburg were once again the most frequent interrupters.

The oral argument interruption terrain appears to have changed this term when compared to previous terms. Although overall raw counts show that some female justices were interrupted at the high end of the spectrum, the figures for interruption frequency do not corroborate this point. Looking at interruptions only involving justices, female justices were not interrupted more frequently this term than male justices. Female justices were also equally engaged in interrupting other justices. The data from one term does not necessarily convey the start of a new pattern, but if this continues, then perhaps noting the past trend will have affected the justices’ behavior in this area moving forward.

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Roberts takes on 9th Circuit after Kennedy retirement

Read more of this story here from SCOTUSblog by Amy Howe.

Roberts takes on 9th Circuit after Kennedy retirement

Justice Anthony Kennedy is now officially a retired justice of the U.S. Supreme Court. Among other things, this means that Kennedy no longer sits as the “circuit justice” for the 9th Circuit – a position in which he was responsible for both emergency requests (such as July’s request by the federal government for the Supreme Court to intervene in a climate-change lawsuit brought by children and teenagers) and more mundane matters, such as requests to extend the time to file a petition for review. Today the Supreme Court released a new set of circuit justice assignments, but the list remains relatively unchanged: Chief Justice John Roberts will take on the 9th Circuit, at least until a ninth justice is confirmed.

Although emergency requests are directed to the circuit justice for the geographic area from which a case arises (Alaska, Arizona, California, Guam, Hawaii, Idaho, Oregon, Montana, Nevada, Northern Mariana Islands and Washington collectively comprise the 9th Circuit, for example), the circuit justice can and generally does refer significant requests to the full court, as Kennedy did with the federal government’s application in the climate-change lawsuit. The circuits are often (but not always) assigned to a justice who has some connection with that geographic area: Justice Stephen Breyer is assigned to the 1st Circuit, where he sat as a judge before joining the court, while Justice Clarence Thomas, who hails from Georgia, is assigned to the 11th Circuit, which is made up of Alabama, Georgia and Florida. The chief justice normally takes on the District of Columbia, Federal and 4th Circuits, so it seems likely that this list could be further revised (and perhaps further reshuffled) when a new justice is confirmed.

This post was originally published at Howe on the Court.

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