Here’s Where Supreme Court Nominee Brett Kavanaugh Stands on Key Issues
Kavanaugh, 53, currently serves as a judge on the powerful US Court of Appeals for the District of Columbia Circuit. Here’s where he stands on some hot-button issues:
Roe v. Wade
Kavanaugh has not expressed outright opposition to Roe v. Wade, the landmark Supreme Court ruling that legalized abortion nationwide. In 2006, Sen. Chuck Schumer, now the Senate Democratic leader, pressed Kavanaugh on his personal opinion on Roe, but he declined to answer, saying, “I don’t think it would be appropriate for me to give a personal view on that case.” The exchange took place during a hearing to consider Kavanaugh’s nomination to serve on the DC circuit.
Kavanaugh did say, however, that if he became a judge on the circuit court, he would uphold Supreme Court precedent with respect to Roe. “If confirmed to the DC Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court. It has been decided by the Supreme Court.”
Because he was a swing-vote in favor of abortion rights, Kennedy’s departure from the court has sparked alarm among abortion rights activists that Roe v. Wade could be overturned. In addition, Trump has long vowed to appoint justices who would reverse Roe and allow states to determine whether abortion should be legal.
One of Kavanaugh’s opinions likely to draw scrutiny from senators is a his dissent from a ruling of the DC Circuit last October that an undocumented immigrant teen in detention was entitled to seek an abortion.
In his dissent, Kavanaugh wrote the Supreme Court has held that “the government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” He wrote that the high court has “held that the government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.” He said the majority opinion was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in US government detention to obtain immediate abortion on demand.” He added, however, that “all parties to this case recognize Roe v. Wade and Planned Parenthood v. Casey as precedents we must follow.”
Kavanaugh’s opinion in a case involving a challenge under the Religious Freedom Restoration Act to the Affordable Care Act’s so-called contraceptive mandate, Priests for Life v. HHS, has also drawn scrutiny. In a dissent, he expressed sympathy for the religious challengers. Making reference to the Supreme Court’s ruling in Burwell v. Hobby Lobby, he wrote that “the regulations substantially burden the religious organizations’ exercise of religion because the regulations require the organizations to take an action contrary to their sincere religious beliefs.”
In a line that has attracted some conservative criticism, however, Kavanaugh also wrote in his dissent that Supreme Court precedent “strongly suggests that the government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.”
Separation of powers and executive branch authority
In his time on the DC Circuit, Kavanaugh established a reputation as a skeptic of regulatory action supported by the Environmental Protection Agency under the Obama administration.
In 2012, he argued in a dissenting opinion that the EPA “exceeded its statutory authority” in a case challenging the agency over the regulation of greenhouse gases. In a separate 2014 opinion, Kavanaugh was again critical of the EPA, writing, “In my view, it is unreasonable for EPA to exclude consideration of costs in determining whether it is ‘appropriate’ to impose significant new regulations on electric utilities.”
In a decision suggesting broad skepticism of agency power, Kavanaugh dissented when the DC Circuit upheld the Consumer Financial Protection Bureau, run by a single director, earlier this year, writing, “The independent agencies collectively constitute, in effect, a headless fourth branch of the US Government. They hold enormous power over the economic and social life of the United States. Because of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances. To mitigate the risk to individual liberty, the independent agencies historically have been headed by multiple commissioners or board members.”
Separately, in a 2009 Minnesota Law Review article, he wrote that “Congress might consider a law exempting a President — while in office — from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.” In the same article, however, he noted, “If the President does something dastardly, the impeachment process is available.”
In 2011, Kavanaugh dissented from a majority opinion of the DC Circuit that upheld a ban that applied to semiautomatic rifles in the District of Columbia.
In his dissent, he wrote that the Supreme Court had previously “held that handguns — the vast majority of which today are semi-automatic — are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens.”
Citing a previous high court ruling, Kavanaugh went on to say, “It follows from Heller‘s protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that DC’s ban on them is unconstitutional.”