People For the American Way

New PFAW Report Examines Kavanaugh’s Record of Dissents


Contact: Drew Courtney at People For the American Way

Email: [email protected]

Phone Number: 202-467-4999

In a new report released today, People For the American Way reviews the 60 dissenting opinions written by Supreme Court nominee Brett Kavanaugh in his 12 years on the DC Circuit Court of Appeals. Taken together, the dissents paint a clear picture of a jurist seeking to favor big business and other authorities at the expense of working people, the environment, and those who have suffered abuse by government officials. These cases often have a national impact.

“If you want to see who Brett Kavanaugh is as a judge, one of the best places to start is by looking at the cases where he disagreed with his colleagues,” said Elliot Mincberg, Senior Fellow at People For the American Way, who authored the report. “What these dissents show is a jurist who is pushing an extreme ideological agenda, even compared with other conservative judges on the DC Circuit. They make clear that far from being a fair-minded constitutionalist, Judge Kavanaugh has a record of making extreme arguments that would put him on the far-right end of the current Supreme Court.”

Judge Kavanaugh’s dissents make up a sizable body of writing: In his time on the bench, Kavanaugh filed more dissents per year than any other active judge on the Circuit. His dissents include nine focused on issues related to discrimination and immigration, seven others related to workers’ rights, 17 related to corporate power and consumer protections and 10 related to environmental protection. In virtually every case, Kavanaugh’s arguments, had they prevailed, would have moved the court’s rulings sharply to the right. Specific examples include:

  • He claimed that the government should be able to prevent a 17 year-old immigrant from choosing an abortion, which  a majority judge explained violated the “demands of the Constitution.”
  • He argued that the FCC’s net neutrality rule benefitting millions was unconstitutional, a claim that the majority explained was supported by “no Supreme Court decision.”
  • He tried to reverse an EPA penalty against a company that improperly shipped a corrosive chemical that caused “significant risks to public health.”
  • He claimed that the Consumer Financial Protection Bureau was unconstitutional, which the majority explained “flies in the face of Supreme Court precedent.”
  • He argued unsuccessfully that the full D.C. Circuit should review a decision rejecting a frivolous challenge to the ACA as unconstitutional because it did not “originate” in the House; the Supreme Court denied review of the case.
  • He maintained that the State Department should be totally exempt from federal law banning age discrimination, even though that reasoning would exempt State from laws banning bias based on race, sex and disability as well.
  • He claimed that DC could not ban semi-automatic rifles, an extreme position on the Second Amendment rejected by two other Republican appointees to the court.
  • He argued that taxpayers should not be able to challenge a defective IRS refund plan concerning improper long-distance telephone excise taxes that cost “millions” of consumers “billons” of dollars
  • He argued that the US Forest Service — despite a successful 14-year record of zero drug tolerance — could impose a random drug testing plan that the majority explained contradicted Supreme Court and D.C. Circuit precedent.

“Even putting aside the fact that Donald Trump promised a nominee who would overturn Roe v. Wade and dismantle the Affordable Care Act, these decisions make clear that Kavanaugh would, if confirmed, be another narrow-minded elitist in the mold of Trump’s earlier nominee, Neil Gorsuch,” said People For the American Way Executive Vice President Marge Baker. “There’s no need to guess what kind of judicial philosophy Kavanaugh would bring to the bench; he’s been acting on it for a dozen years. And there’s no question that giving him a lifetime seat on the Supreme Court would spell disaster for reproductive freedom, for health care, for our system of checks and balances and for any number of other critical issues.”

You can read the full report here:

A summary of the report is available here: