Some of Brett Kavanaugh’s supporters maintain that adding him to the Supreme Court would strengthen protection for constitutional civil liberty. Well, that all depends on what civil liberties we are talking about and for whom. If we are talking about the “liberty” of corporations to take advantage of and harm consumers despite government attempts to stop them, that could well be true. But if we are concerned about the constitutional civil liberties of ordinary people, Kavanaugh’s confirmation will take America in the wrong direction. On both counts, Kavanaugh’s views warrant Senate rejection of his nomination.
A prime example of Kavanaugh’s version of “protecting” civil liberties is his dissent in PHH Corp. v. Consumer Financial Protection Bureau, where the full D.C. Circuit overruled an earlier Kavanaugh opinion and rejected attacks by corporations on the Consumer Financial Protection Bureau (CFPB) as unconstitutional. But Kavanaugh claimed that Congress’ decision that the CFPB should be run by an individual who could be removed by the President only for cause actually violated constitutional protections of “individual liberty” and threatened “tyranny,” even though the scope of the CFPB’s authority was limited to protecting consumers from abusive actions by powerful banks and other corporations. The majority firmly rejected Kavanaugh’s assertions, explaining that it was a “valid exercise” of Congress’ law-making authority to create CFPB as it did, and that Kavanaugh’s claim “flies in the face” of Supreme Court precedent.
Another example is Kavanaugh’s dissent in United States Telecom Ass’n. v. FCC, where the D.C. Circuit rejected corporations’ attack on the Federal Communications Commission’s “net neutrality” rule, That rule, before it was abolished by the FCC under President Trump, required internet providers to keep their promises to provide open access to the internet and said they could not later try to block or slow down access to some sites in order to promote their own. But Kavanaugh dissented from the decision of the full D.C. Circuit not to rehear the case, claiming that the rule violated the First Amendment rights of the corporations. As several judges in the majority pointed out, however, “no Supreme Court decision” supported Kavanaugh’s “counterintuitive” First Amendment claim, which not even a single dissenting FCC commissioner had supported.
But what about cases where the civil liberties of individuals are at stake? In those decisions, Kavanaugh has consistently been against individual civil liberties, drawing opposition from political conservatives as well as progressives.
For example, conservative activist and attorney Larry Klayman obtained a lower court injunction against the federal government’s “bulk data collection” program begun under the Bush Administration. Under that program, the government collected telephone “metadata,” such as information on numbers dialed and how long phone calls lasted, on numerous individuals without a warrant, and deposited it into a database. The FBI could then probe that database with approval by the Foreign Intelligence Surveillance Act court. The D.C. Circuit later stayed the injunction, shortly before the program was to be replaced, and the full D.C. Circuit declined to rehear the matter. But Kavanaugh went much further than to vote in favor of the stay. He went out of his way to write a concurring opinion that asserted that the metadata program was “entirely consistent with the Fourth Amendment.” Without full briefing and argument, Kavanaugh concluded that the alleged “critical national security need” for the program “outweighs the impact on privacy.” Yet at least one appellate court has ruled the controversial metadata collection program to be illegal. And the assertion that the program was important to “preventing terrorist attacks” on our country was contradicted by a report the previous year by the government’s Privacy and Civil Liberties Oversight Board. (Importantly, Kavanaugh was at the White House when the program began in 2001 and was staff secretary when Bush’s White House counsel re-authorized the full program when Attorney General Ashcroft refused to do so in 2004, but Republicans are refusing to authorize access to documents from Kavanaugh’s time as staff secretary.)
United States v. Jones provides another example of Kavanaugh’s disregard for the civil liberties of individual Americans. In that case, a three-judge panel not including Kavanaugh ruled that the government’s use of a global positioning system (GPS) device to track the movements of an individual for four weeks without a warrant violated the Fourth Amendment. A majority of the full D.C. Circuit, including several conservative Republican-appointed judges, decided not to grant rehearing of the case. But Kavanaugh and several others dissented. They argued that the decision conflicted with Supreme Court precedent. But the Supreme Court then heard the Jones case and affirmed the D.C. Circuit, with every justice agreeing on the result. Although Kavanaugh tried to claim otherwise in his Senate questionnaire, it is clear that he disagreed with the D.C. Circuit decision on the merits.
Yet another example is Kavanaugh’s dissent in National Fed. of Fed. Employees v. Vilsack, where the majority invalidated a random drug testing program for U.S. Forest Service employees at Job Corps Civilian Conservation centers. The majority, including another Republican-appointed judge, pointed out that there was “no evidence of any difficulty” in maintaining a zero-drug tolerance regime during the 14 years before the policy was ordered, and that the primary administrator of the Job Corps, the Department of Labor, had no such policy. Kavanaugh nonetheless voted to keep in place this violation of privacy rights. The majority criticized Kavanaugh’s dissent, noting that he “paints with a broad brush without regard to precedent” on both the D.C. Circuit and the Supreme Court concerning random drug testing programs.
Based on Kavanaugh’s opinions in such Fourth Amendment cases, Republican Representative Justin Amash has opposed Kavanaugh’s nomination, as has Larry Klayman Kavanaugh has also written dissents from other D.C. Circuit decisions protecting individual civil liberties, such as the right to counsel under the Sixth Amendment.
It is clear that Kavanaugh’s version of “protecting” civil liberties of corporations would take us back to the infamous Lochner era, when a narrow Supreme Court majority struck down minimum wage, child labor, and other laws designed to help workers and consumers in order to protect so-called liberty interests of powerful corporations and the wealthy to harm them. And when it comes to individual liberties that actually are protected by the Constitution, Kavanaugh would take us back as well. In both of these important areas, America cannot afford Kavanaugh’s version of protecting civil liberties.