Brett Kavanaugh

Nonpartisan

Supreme Court of the United States

Tenure

2018 - Present

Years in position

Prior offices

United States Court of Appeals for the District of Columbia Circuit

* * *

Education

Bachelor's

Yale, 1987

Law

Yale Law, 1990

Personal

Birthplace

District of Columbia

## Contents

* 1 Professional career
* 2 Early life and education
* 3 Approach to the law
* 3.1 Martin-Quinn score
* 3.2 Video discussion
* 3.3 Views on the administrative state
* 3.3.1 Separation of powers and Chevron deference
* 3.3.2 Auer deference
* 4 Judicial nominations and appointments
* 4.1 United States Supreme Court (2018 - present)
* 4.1.1 Remarks in response to nomination
* 4.2 District of Columbia Court of Appeals (2006-2018)
* 5 Supreme Court statistics
* 5.1 Opinions by year
* 5.2 Justice agreement
* 5.3 Frequency in majority
* 6 Noteworthy cases
* 6.1 Supreme Court opinions
* 6.1.1 Standing in class-action lawsuits (2021)
* 6.1.2 Habeas corpus review in cases concerning the death penalty (2019)
* 6.1.3 Removable offenses in deportation case (2019)
* 6.1.4 Standing in case concerning Employee Retirement Income Security Act of 1974 (ERISA) (2019)
* 6.1.5 Previous noteworthy opinions
* 6.1.5.1 Public access stations and the First Amendment (2018)
* 6.1.5.2 App store monopolization (2018)
* 6.2 D.C. Circuit opinions
* 6.2.1 Rochelle Garza v. Eric D. Hargan (2015)
* 6.2.2 Larry Elliott Klayman v. Barack Obama (2015)
* 6.3 SCOTUS reverses D.C. Circuit over clean air regulations (2014)
* 6.4 Kavanaugh's list of his top ten cases
* 7 Noteworthy events
* 7.1 Tested positive for coronavirus on September 30, 2021
* 8 See also
* 9 External links
* 10 Footnotes

Brett Kavanaugh is an associate justice of the Supreme Court of the United States. He was nominated to the Court by President Donald Trump (R) on July 9, 2018, to fill the seat left vacant by Anthony Kennedy. He was confirmed by the Senate and sworn into office on October 6, 2018.[1]

Kavanaugh began his legal career by clerking for three federal judges, including Supreme Court Justice Anthony Kennedy. Kavanaugh worked in the office of U.S. Solicitor General Kenneth Starr and was a primary author of the Starr Report on potentially impeachable acts by President Bill Clinton (D).[2]

He also worked as counsel to President George W. Bush (R). Kavanaugh was nominated by Bush and confirmed to the United States Court of Appeals for the District of Columbia Circuit in 2003.

Kavanaugh’s notable opinions include his dissenting opinion in Garza v. Hargan on abortion access for an undocumented 17-year-old immigrant and his concurring opinion in Klayman v. Obama on government data collection.

## Professional career[edit]

* 2018-Present: Associate justice, U.S. Supreme Court
* 2006-2018: Judge, United States Court of Appeals for the District of Columbia Circuit
* 2003-2006: Assistant to President George W. Bush (R) and staff secretary
* 2001-2003: Associate counsel for the Executive Branch
* 1998: Associate counsel, Office of Independent Counsel
* 1994-1997: General counsel, Judiciary Branch
* 1993-1994: Law clerk, U.S. Supreme Court Justice Anthony M. Kennedy
* 1992-1993: Staff attorney, U.S. Office of the Solicitor General
* 1991-1992: Law clerk, Ninth Circuit Court of Appeals Judge Alex Kozinski
* 1990-1991: Law clerk, Third Circuit Court of Appeals Judge Walter Stapleton[3]

Kavanaugh was a clerk to former Supreme Court Justice Anthony Kennedy, Judge Alex Kozinski of the Ninth Circuit, and Judge Walter Stapleton of the Third Circuit. He also worked on a one-year fellowship in the Office of the Solicitor General of the United States under Kenneth Starr. During that time, he worked on the Whitewater Investigation.

Kavanaugh was also a partner at the law firm of Kirkland & Ellis and served as an associate counsel in the Office of Independent Counsel.[4]

After George W. Bush (R) was elected as president, Kavanaugh was senior associate counsel and associate counsel to the president and then served as assistant to the president and staff secretary. Kavanaugh was serving in this role when Bush nominated him to the D.C. Circuit, and he was sworn in June 1, 2006.

## Early life and education[edit]

Born in Washington, D.C., Kavanaugh attended Georgetown Preparatory School. He graduated from Yale College with his bachelor's degree in 1987 and from Yale Law School with his J.D. in 1990.[3]

## Approach to the law[edit]

In a 2017 speech before the American Enterprise Institute on former Chief Justice William Rehnquist, Kavanaugh said, "[a]s I see it, the Constitution is primarily a document of majestic specificity, and those specific words have meaning. Absent constitutional amendment, those words continue to bind us as judges, legislators, and executive officials."[5]

Oyez, a law project created by Cornell’s Legal Information Institute, Justia, and Chicago-Kent College of Law, identified Kavanaugh as a member of the court's conservative bloc. It said that while on the D.C. Circuit, Kavanaugh "predictably established a conservative track record on a range of hot-button issues."[6]

At SCOTUSBlog, Adam Feldman wrote in July 2020 that "Although conservatives might have envisioned Kavanaugh’s arrival at the court – replacing the more moderate Kennedy – as likely to solidify a strong right wing on the court, this has not been clearly the case. [John] Roberts and Kavanaugh have both been frequent members of the court’s majority in each of the past two terms, with Roberts in the majority appreciably more this term (97%) than last (85%), and Kavanaugh at 93% this term compared to 88% last term."[7]

### Martin-Quinn score[edit]

Kavanaugh's Martin-Quinn score following the 2020-2021 term was 0.55, making him the fifth-most conservative justice on the court at that time. Martin-Quinn scores were developed by political scientists Andrew Martin and Kevin Quinn from the University of Michigan, and measure the justices of the Supreme Court along an ideological continuum. The further from zero on the scale, the more conservative (>0) or liberal (<0) the justice. The chart below details every justice's Martin-Quinn score for the 2020-2021 term.

### Video discussion[edit]

Kavanaugh spoke at The Heritage Foundation in October 2017 about his White House experience, life as a federal judge, and his approach to the Constitution. The video of that event is embedded below.

### Views on the administrative state[edit]

#### Separation of powers and Chevron deference[edit]

The New Civil Liberties Alliance (NCLA), a public interest law firm that, according to its website, aims at protecting what it calls "constitutional liberties from systemic threats, primarily the administrative state," published an assessment of potential replacements for Justice Anthony Kennedy based on how each of them approached questions about the administrative state.[8][9]

Its assessment held that Kavanaugh would oppose attempts by administrative agencies to consolidate legislative, executive and judicial powers into the same hands.[8] Kavanaugh had raised concerns about potential conflicts between the operations of the administrative state and the principle of separation of powers:[8]

|  “  |
In his 12 years sitting on the D.C. Circuit Court of Appeals, Kavanaugh has developed a consistent, albeit nuanced, approach to adjudicating matters related to the administrative state. Kavanaugh believes agencies cannot regulate outside the boundaries of their statutory authority under any circumstance. Independent agencies pose significant constitutional challenges—Judge Kavanaugh has described them as a “headless fourth branch of the U.S. Government.” Kavanaugh has warned that since independent agencies exercise “massive power [in] the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of checks and balances.” Courts should be wary of regulation adopted by independent agencies because there is a problem of accountability, given the President’s inability to supervise their activities. Kavanaugh has suggested that the judiciary is at least partly to blame for the growing concentration of power in independent agencies. Courts have served as enablers to Congress’ unconstitutional transfer of its legislative authority to the executive branch.[10] |  ”

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Kavanaugh had a record of examining the practice of Chevron deference, an administrative law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer:[8]

|  “  |

Judge Kavanaugh notes that “ambiguity-dependent canons” such as Chevron raise particular concern because “the doctrine is so indeterminate—and thus can be antithetical to the neutral, impartial rule of law—because of the initial clarity versus ambiguity decision.” He has also expressed concern with Chevron because the doctrine “has no basis in the Administrative Procedure Act.” Because Chevron is “an atextual invention by courts,” Kavanaugh asserts that Chevron deference “is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.”

Moreover, Judge Kavanaugh’s experience in the White House has led him to observe additional practical political problems with Chevron. Chevron encourages the Executive Branch—regardless of the person or party in control—to be “extremely aggressive” in trying to advance policy through agency action. Kavanaugh sees the Supreme Court’s King v. Burwell decision as a limitation on Chevron’s deference regime though, removing from its ambit the class of cases that pose “question[s] of deep economic and political significance.” To Kavanaugh, Burwell begs the question: if the major rules doctrine requires a court not to apply Chevron, why should Chevron apply to cases involving less major questions? [...]

Judge Kavanaugh has not been a crusader looking for an excuse to overturn Chevron on the D.C. Circuit. In fact, he has said that applying “Chevron makes a lot of sense in certain circumstances.” Kavanaugh believes that when “Congress delegates the decision to an executive branch agency that makes the policy decision … that the courts should stay out of it for the most part.” His principal concern with Chevron is not that courts should never defer to agencies, it is that the doctrine is often incorrectly applied to defer to agencies in circumstances that have little to do with the reasonableness of agencies’ expressly delegated policy decisions.[10]

|  ”

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#### Auer deference[edit]

Kavanaugh discussed his opposition to Auer deference during a keynote address at George Mason University Law School in June 2016. His remarks featured a summary of former Supreme Court Justice Antonin Scalia's dissent in Decker v. Northwest Environmental Defense Center, which argued against Auer deference on the grounds that it violates the separation of powers. Kavanaugh himself went on to predict that Auer deference would eventually be overruled:[11]

|  “  | Decker, as [Justice Scalia] explained, Auer violates a fundamental principle of separation of powers: that the power to write a law and the power to interpret it cannot rest in the same hands. Justice Scalia pointedly noted that Auer was not a logical corollary to Chevron, but a dangerous permission slip for the arrogation of power. In the end Justice Scalia said that Auer ‘contravenes one of the great rules of separation of powers, he who writes a law must not adjudge its violation.’ On the law, Justice Scalia explained that Auer is one big, unexplained, unjustified ipse dixit, and there could be no doubt, he pointed out that it has huge practical consequences for individual liberty when the law writer is also the law interpreter. In short, I predict that Auer will someday be overruled and that Justice Scalia's dissent in Decker will be the law of the land.[10] |  ”

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## Judicial nominations and appointments[edit]

### United States Supreme Court (2018 - present)[edit]

See also: Nomination of Brett Kavanaugh to the U.S. Supreme Court
See also: Supreme Court vacancy, 2018: An overview
Nomination Tracker

Nominee Information
Name: Brett M. Kavanaugh
Court: Supreme Court of the United States
Progress
Confirmed 88 days after nomination.
ANominated: July 10, 2018
AABA Rating: Unanimously Well Qualified
AQuestionnaire: Questionnaire
AHearing: September 4-7, 2018, September 27, 2018
AQFRsFollow-up questions may be prepared and submitted to nominees for written replies to expand on their testimony. Nominees may be asked to expand on answers given at the hearing or to discuss new matters raised in the course of the hearing. Often the chair will announce that the hearing record will be left open for a period of time so that additional information can be entered into the formal hearing record.: (Hover over QFRs to read more)
AReported: September 28, 2018
AConfirmed: October 6, 2018
AVote: 50-48

On July 9, President Donald Trump nominated Brett Kavanaugh to succeed Associate Justice Anthony Kennedy on the U.S. Supreme Court. Trump said regarding the nomination:

“  | Judge Kavanaugh has impeccable credentials, unsurpassed qualifications, and a proven commitment to equal justice under the law. A graduate of Yale College and Yale Law school, Judge Kavanaugh currently teaches at Harvard, Yale, and Georgetown. Throughout legal circles, he is considered a judge’s judge, a true thought leader among his peers. He is a brilliant jurist with a clear and effective writing style, universally regarded as one of the finest and sharpest legal minds of our time. And just like justice Gorsuch, he excelled as a clerk for Justice Kennedy.[12][10] |  ”

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The American Bar Association rated Kavanaugh Unanimously Well Qualified for the nomination.[13] The Senate Judiciary Committee held hearings on Kavanaugh's nomination from September 4 to September 7 and again September 27.[14] Click here for more information about the hearings.

The U.S. Senate confirmed Kavanaugh's nomination October 6 on a recorded vote of 50-48-1.[14] Click here for more information about Kavanaugh's nomination and confirmation.

Kavanaugh stopped hearing cases or issuing opinions on the D.C. Circuit while his confirmation was pending.[15]

On June 27, 2018, Justice Anthony Kennedy announced he was retiring from the U.S. Supreme Court effective July 31, 2018. In an official release, Kennedy cited a desire to spend more time with his family as the reason for his retirement.[16] Kennedy was considered by many to be the court's swing vote, often casting the deciding vote between the court's more conservative and liberal members.

#### Remarks in response to nomination[edit]

Kavanaugh issued the statement below after President Trump announced his nomination on July 9, 2018.[17]

Mr. President, thank you. Throughout this process, I have witnessed firsthand your appreciation for the vital role of the American judiciary. No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination. Mr. President, I am grateful to you and I am humbled by your confidence in me. Thirty years ago, President Reagan nominated Anthony Kennedy to the Supreme Court. The framers established that the constitution is designed to secure the blessings of liberty. Justice Kennedy devoted his career to securing liberty. I am deeply honored to be nominated to fill his seat on the Supreme Court.

My mom and dad are here. I am their only child. When people ask what it’s like to be an only child, I say it depends on who your parents are. I was lucky. My mom was a teacher. In the 1960's and 70's, she taught history at two largely African-American public high schools in Washington DC. – McKinley Tech and H.D. Woodson. Her example taught me the importance of equality for all Americans. My mom was a trailblazer. When I was 10, she went to law school and became a prosecutor. My introduction to law came at our dinner table when she practiced her closing arguments. Her trademark line was, “use your common sense, what rings true, what rings false.” That’s good advice for a juror and for a son. One of the few women prosecutors at that time, she overcame barriers and became a trial judge. The president introduced me tonight as Judge Kavanaugh. But to me, that title will always belong to my mom. My dad went to law school at night while working full-time. He has an unparalleled work ethic and has passed down to me his passion for playing, and watching, sports. I love him dearly.

The motto of my Jesuit high school was, “Men for Others.” I’ve tried to live that creed. I spent my career in public service from the executive branch in the White House to the U.S. court of appeals for the D.C. circuit. I’ve served with 17 other judges, each of them, a colleague and a friend. My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written and a judge must interpret the constitution as written, informed by history and tradition, and precedent.

For the past 11 years, I’ve taught hundreds of students, primarily at Harvard law school. I teach that the Constitution’s separation of powers protects individual liberty and I remain grateful to the dean who hired me – Justice Elena Kagan. As a judge, I hire four law clerks each year. I look for the best. My law clerks come from diverse backgrounds and points of view. I am proud that a majority of my law clerks have been women. I am part of the vibrant Catholic community in the D.C. area. The members of that community disagree about many things, but we are united by a commitment to serve. Father John Enzler is here. Forty years ago, I was an altar boy for Father John. These days, I help him serve meals to the homeless at Catholic charities.

I have two spirited daughters. Margaret and Liza. Margaret loves sports and she loves to read. Liza loves sports and she loves to talk. I have tried to create bonds with my daughters like my dad created with me. For the past seven years, I have coached my daughter’s basketball teams. The girls on the team call me Coach K. I am proud of our Blessed Sacrament team that just won the city championship.

My daughters and I also go to lots of games. Our favorite memory was going to the historic Notre Dame-UConn women's basketball game at this year's Final Four. Unforgettable. My wife Ashley is a west Texan, a graduate of Abilene Cooper public high school and the University of Texas. She is now the town manager of our community. We met in 2001 when we both worked in the White House. Our first date was on September 10, 2001. The next morning, I was a few steps behind her as the secret service shouted at all of us to sprint out the front gates of the White House because there was an inbound plane. In the difficult weeks that followed, Ashley was a source of strength for President Bush and for everyone in this building. Through bad days and so many better days, since then, she has been a great wife and inspiring mom. I thank God every day for my family.

Tomorrow I begin meeting with members of the Senate which plays an essential role in this process. I will tell each Senator that I revere the constitution. I believe that an independent judiciary is the crown jewel of our constitutional republic. If confirmed by the Senate, I will keep an open mind in every case and I will always strive to preserve the constitution of the United States and the American rule of law. Thank you, Mr. President.

### District of Columbia Court of Appeals (2006-2018)[edit]

On the recommendation of the Congressional Delegation for the District of Columbia, President George W. Bush (R) nominated Kavanaugh to the United States Court of Appeals for the District of Columbia Circuit on February 25, 2006, to a seat vacated by Laurence Silberman as Silberman assumed senior status. The U.S. Senate confirmed Kavanaugh by a vote of 57-36 on May 26, 2006. He received commission on May 29. Fifty-three Republicans and four Democrats voted "yea," and seven members did not vote. Of the Democrats voting in favor, only Tom Carper (Del.) was still in the Senate as of July 9, 2018.[18]

Click here to read the transcript of Kavanaugh's 2006 confirmation hearings.

## Supreme Court statistics[edit]

### Opinions by year[edit]

Below is a table of the number of opinions, concurrences, and dissents that Kavanaugh has issued since joining the Supreme Court according to the annual Stat Pack produced by the website SCOTUSBlog. This information is updated annually at the end of each term.

Opinions written by year, Brett Kavanaugh

| 2018 | 2019 | 2020
Opinions | 7 | 6 | 6
Concurrences | 5 | 5 | 7
Dissents | 2 | 3 | 2
Totals | 14 | 14 | 15

### Justice agreement[edit]

In the 2020 term, Kavanaugh had the highest agreement rate with John Roberts. Kavanaugh had the highest disagreement rate with Sonia Sotomayor.[19] In the 2019 term, Kavanaugh agreed in full, part, or judgement only the most often with John Roberts. He disagreed most often with Sonia Sotomayor.[20]

The table below highlights Kavanaugh's agreement and disagreement rates with each justice on the court during this term.

Brett Kavanaugh agreement rate, 2018 - Present

|  2018 term  |  2019 term  |  2020 term
Justice  |  Agreement rate  |  Disagreement rate  |  Agreement rate  |  Disagreement rate  |  Agreement rate[21] |  Disagreement rate
John Roberts | 94%  | 6%  | 93%  | 7%  | 94%  | 6%
Clarence Thomas | 80%  | 20%  | 78%  | 22%  | 78%  | 22%
Ruth Bader Ginsburg | 63%  | 37%  | 67%  | 33%  | N/A  | N/A
Stephen Breyer | 70%  | 30%  | 70%  | 30%  | 73%  | 27%
Samuel Alito | 91%  | 9%  | 80%  | 20%  | 86%  | 14%
Sonia Sotomayor | 64%  | 36%  | 65%  | 35%  | 66%  | 34%
Elena Kagan | 70%  | 30%  | 71%  | 29%  | 72%  | 28%
Neil Gorsuch | 70%  | 30%  | 88%  | 12%  | 87%  | 13%
Amy Coney Barrett | N/A  | N/A  | N/A  | N/A  | 91%  | 9%

### Frequency in majority[edit]

In the 2020 term, Kavanaugh was in the majority in 97 percent of decisions. He was in the majority more often than all of the other eight justices.[22] In the 2019 term, Kavanaugh was in the majority in 93 percent of decisions. He was in the majority more often than seven of the other eight justices and less than the chief justice.[23]

Across those terms, Kavanaugh has been in the majority for 93 percent of all cases.

## Noteworthy cases[edit]

See also: Noteworthy cases heard by current justices on the U.S. Supreme Court

The noteworthy cases listed in this section include any case where the justice authored a 5-4 majority opinion or an 8-1 dissent. Other cases may be included in this decision if they set or overturn an established legal precedent, are a major point of discussion in an election campaign, receive substantial media attention related to the justice's ruling, or based on our editorial judgment that the case is noteworthy. For more on how we decide which cases are noteworthy, click here.

Since he joined the court through the 2020 term, Kavanaugh authored the majority opinion in a 5-4 decision seven times and had not authored a dissent in an 8-1 decision. The table below details these cases by year.

Brett Kavanaugh noteworthy cases

Year  |  5-4 majority opinion  |  8-1 dissenting opinion
Total | 7 | 0
2020  | 1  | 0
2019  | 4  | 0
2018  | 2  | 0

### Supreme Court opinions[edit]

#### Standing in class-action lawsuits (2021)[edit]

See also: TransUnion LLC v. Ramirez

Kavanaugh authored a 5-4 majority opinion in TransUnion LLC v. Ramirez, holding that members of the class-action lawsuit whose credit files were not provided to third-party businesses did not suffer a concrete harm from TransUnion's actions and therefore lacked standingThe legal right to sue. to sue under Article III. Kavanaugh was joined in the majority by Justices Chief Justice John G. Roberts, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett.[24]

“  | To have Article III standing to sue in federal court, plaintiffs must demonstrate, among other things, that they suffered a concrete harm. No concrete harm, no standing. Central to assessing concreteness is whether the asserted harm has a “close relationship” to a harm traditionally recognized as providing a basis for a lawsuit in American courts—such as physical harm, monetary harm, or various intangible harms including (as relevant here) reputational harm. Spokeo, Inc. v. Robins, 578 U. S. 330, 340–341 (2016).

In this case, a class of 8,185 individuals sued TransUnion, a credit reporting agency, in federal court under the Fair Credit Reporting Act. The plaintiffs claimed that TransUnion failed to use reasonable procedures to ensure the accuracy of their credit files, as maintained internally by TransUnion. For 1,853 of the class members, TransUnion provided misleading credit reports to third-party businesses. We conclude that those 1,853 class members have demonstrated concrete reputational harm and thus have Article III standing to sue on the reasonable-procedures claim. The internal credit files of the other 6,332 class members were not provided to third-party businesses during the relevant time period. We conclude that those 6,332 class members have not demonstrated concrete harm and thus lack Article III standing to sue on the reasonable-procedures claim. [10]

|  ”

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—Justice Kavanaugh[24]

#### Habeas corpus review in cases concerning the death penalty (2019)[edit]

See also: McKinney v. Arizona

Kavanaugh authored a 5-4 majority opinion in McKinney v. Arizona, holding that a state appellate court, rather than a jury, may conduct a reweighing of aggravating and mitigating circumstances on habeas corpus review in cases concerning the death penalty. Kavanaugh was joined in the majority by Justices Chief Justice John G. Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch.[25]

“  | A Clemons reweighing is a permissible remedy for an Eddings error, and when an Eddings error is found on collateral review, a state appellate court may conduct a Clemons reweighing on collateral review. McKinney’s argument that a jury must resentence him does not square with Clemons, where the Court held that a reweighing of the aggravating and mitigating evidence may be conducted by an appellate court. ... Because Clemons involved an improperly considered aggravating circumstance, McKinney maintains that it is inapposite here, where the case involves an improperly ignored mitigating circumstance. Clemons, however, did not depend on any unique effect of aggravators as distinct from mitigators. For purposes of appellate reweighing, there is no meaningful difference between subtracting an aggravator from one side of the scale and adding a mitigator to the other side. McKinney also argues that Clemons is no longer good law in the wake of Ring v. Arizona, and Hurst v. Florida, where the Court held that a jury must find the aggravating circumstance that makes the defendant death eligible.

But that does not mean that a jury is constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range. ... McKinney notes that the Arizona trial court, not the jury, made the initial aggravating circumstance finding that made him eligible for the death penalty. But McKinney’s case became final on direct review long before Ring and Hurst, which do not apply retroactively on collateral review, ... and the Arizona Supreme Court’s 2018 decision reweighing the aggravators and mitigators did not constitute a reopening of direct review.[10]

|  ”

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—Justice Kavanaugh[25]

#### Removable offenses in deportation case (2019)[edit]

See also: Barton v. Barr

Kavanaugh authored a 5-4 majority opinion in Barton v. Barr, holding that for purposes of cancellation-of-removal eligibility, a §1182(a)(2) offense committed during the initial seven years of residence does not need to be one of the offenses of removal. Kavanaugh was joined in the majority by Justices Chief Justice John G. Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch.[26]

“  |  Removal of a lawful permanent resident from the United States is a wrenching process, especially in light of the consequences for family members. Removal is particularly difficult when it involves someone such as Barton who has spent most of his life in the United States. Congress made a choice, however, to authorize removal of noncitizens—even lawful permanent residents—who have committed certain serious crimes. And Congress also made a choice to categorically preclude cancellation of removal for noncitizens who have substantial criminal records. Congress may of course amend the law at any time. In the meantime, the Court is constrained to apply the law as enacted by Congress. Here, as the BIA explained in its 2006 Jurado-Delgado decision, and as the Second, Third, Fifth, and Eleventh Circuits have indicated, the immigration laws enacted by Congress do not allow cancellation of removal when a lawful permanent resident has amassed a criminal record of this kind.

We affirm the judgment of the U. S. Court of Appeals for the Eleventh Circuit.[10]

|  ”

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—Justice Kavanaugh[26]

#### Standing in case concerning Employee Retirement Income Security Act of 1974 (ERISA) (2019)[edit]

See also: Thole v. U.S. Bank

Kavanaugh authored a 5-4 majority opinion in Thole v. U.S. Bank, holding the plaintiffs did not have standingThe legal right to sue. and would still receive the same amount of monthly benefits regardless of the case's outcome. Kavanaugh was joined in the majority by Justices Chief Justice John G. Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch.[27]

“  | We affirm the judgment of the U. S. Court of Appeals for the Eighth Circuit on the ground that the plaintiffs lack Article III standing. Thole and Smith have received all of their monthly benefit payments so far, and the outcome of this suit would not affect their future benefit payments. ... The plaintiffs therefore have no concrete stake in this lawsuit.[10] |  ”

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—Justice Kavanaugh[27]

#### Previous noteworthy opinions[edit]

* 2018-2019 term (Click to expand)

##### Public access stations and the First Amendment (2018)[edit]

See also: Manhattan Community Access Corp. v. Halleck

Kavanaugh authored a 5-4 majority opinion in this case holding that a public access television station was not subject to the First Amendment. Kavanaugh was joined in the majority by Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch. Kavanaugh wrote:[28]

“  | We conclude that operation of public access channels on a cable system is not a traditional, exclusive public function. Moreover, a private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. In operating the public access channels, MNN is a private actor, not a state actor, and MNN therefore is not subject to First Amendment constraints on its editorial discretion. We reverse in relevant part the judgment of the Second Circuit, and we remand the case for further proceedings consistent with this opinion.[10] |  ”

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##### App store monopolization (2018)[edit]

See also: Apple v. Pepper

Kavanaugh authored a 5-4 majority opinion in this case ruling that those who purchase apps through Apple's App Store are direct purchasers and can therefore sue Apple for allegedly monopolizing the market and increasing prices. Kavanaugh was joined in the majority by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Kavanaugh wrote:[29]

“  | A claim that a monopolistic retailer (here, Apple) has used its monopoly to overcharge consumers is a classic antitrust claim. But Apple asserts that the consumerplaintiffs in this case may not sue Apple because they supposedly were not “direct purchasers” from Apple under our decision in Illinois Brick Co. v. Illinois, 431 U. S. 720, 745–746 (1977). We disagree. The plaintiffs purchased apps directly from Apple and therefore are direct purchasers under Illinois Brick. At this early pleadings stage of the litigation, we do not assess the merits of the plaintiffs’ antitrust claims against Apple, nor do we consider any other defenses Apple might have. We merely hold that the Illinois Brick direct-purchaser rule does not bar these plaintiffs from suing Apple under the antitrust laws. We affirm the judgment of the U. S. Court of Appeals for the Ninth Circuit.[10] |  ”

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—Brett Kavanaugh (2019)

### D.C. Circuit opinions[edit]

#### Rochelle Garza v. Eric D. Hargan (2015)[edit]

Kavanaugh dissented from a majority ruling which required the government to permit a pregnant 17-year-old girl who had entered the country without legal permission to obtain an abortion. He wrote that although the U.S. Supreme Court ruled that the Constitution protects a woman's decision to choose abortion, there was room for the government to apply "reasonable regulations that do not impose an undue burden."[30]

#### Larry Elliott Klayman v. Barack Obama (2015)[edit]

Kavanaugh wrote a concurring opinion denying the rehearing of a lawsuit about government data collection called Larry Elliott Klayman v. Barack Obama. Kavanaugh said his reason for denial was that the government's data collection program was compatible with the Fourth Amendment. He wrote,

“  | The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment...[C]ritical national security need outweighs the impact on privacy occasioned by this program.[31][10] |  ”

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### SCOTUS reverses D.C. Circuit over clean air regulations (2014)

See also: United States Court of Appeals for the District of Columbia Circuit (E.P.A. v. EME Homer City Generation; American Lung Association v. EME Homer City Generation)

On April 29, 2014, the U.S. Supreme Court reversedThe action of an appellate court overturning a lower court's decision. the judgment of a divided three-judge panel of the United States Court of Appeals for the District of Columbia Circuit in E.P.A. v. EME Homer City Generation. Kavanaugh wrote the opinion of the circuit panel.

In 2011, the Environmental Protection Agency (EPA) created the Transport Rule, which established emission standards for 28 states identified as upwind states. Upwind states were those states whose air pollution impacted the air quality of those states identified as downwind states. The EPA rule created emissions standards in upwind states based on the air quality standards in downwind states. A number of litigants filed a lawsuit in the D.C. Circuit, alleging the federally established standards violated states' rights. Writing for a 2-1 circuit panel, Kavanaugh held that the rule violated federal law because the Clean Air Act permitted states to implement their own contingencies to reduce air pollution.

Writing for a six-justice majority, Justice Ruth Bader Ginsburg reversedThe action of an appellate court overturning a lower court's decision. the circuit panel, holding that "in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. ... we reversed a D. C. Circuit decision that failed to accord deference to EPA’s reasonable interpretation of an ambiguous Clean Air Act provision. Satisfied that the Good Neighbor Provision does not command the Court of Appeals’ cost-blind construction, and that EPA reasonably interpreted the provision, we reverse the D. C. Circuit’s judgment."[32][33]

### Kavanaugh's list of his top ten cases[edit]

Kavanaugh completed a questionnaire in July 2018 for the Senate Judiciary Committee that included a list of what were, in his view, the ten most important cases in which he had a role. They are listed below. Kavanaugh's summary of the cases are below each case name.[34]

Click "show" to the right to view the ten cases|

|

1\. Swidler & Berlin v. United States

"I represented the United States and argued and briefed this case in both the Supreme Court of the United States and the United States Court of Appeals for the District of Columbia Circuit. The case presented the question whether the attorney-client privilege continues to apply in federal criminal proceedings when the client is deceased and therefore no longer available to testify. A federal grand jury issued a subpoena for communications that occurred between Vincent W. Foster, Jr., and his attorney James Hamilton nine days before Mr. Foster's suicide. Mr. Hamilton challenged the subpoena, arguing that the attorney-client privilege continued to apply after the death of the client and that he was not permitted to disclose what Mr. Foster had told him. The United States, represented by the Office of Independent Counsel, sought to enforce the grand jury subpoena, arguing that the attorney-client privilege did not apply with full force in federal criminal proceedings when the client was deceased. Many legal treatises, including the American Law Institute's Restatement of the Law, had agreed with the position advocated by the Office of independent Counsel. The U.S. Court of Appeals for the D.C. Circuit, in an opinion by Judge Patricia Wald and Judge Stephen Williams, ruled in favor of the Office of independent Counsel. Judge Tatel dissented. The Supreme Court then granted certiorari and ruled 6-3 in favor of Mr. Hamilton in an opinion by Chief Justice Rehnquist. The dissent written by Justice O'Connor and joined by Justices Scalia and Thomas agreed with the position of the Office of Independent Counsel."

2\. Concerned Citizens of Carderock v. Hubbard & Adat Shalom Reconstructionist Congregation

"I represented pro bono Adat Shalom, a synagogue in Bethesda, Maryland, in the United States District Court for the District of Maryland (Judge Andre Davis). The district court decided the case in 2000. Plaintiffs sued Montgomery County and Adat Shalom, arguing that Montgomery County's zoning ordinance violated the Establishment Clause by granting religious entities an exemption from the county's special exception zoning process. Adat Shalom argued that the ordinance was neutral between religious and non-religious entities and thus constitutional. In particular, Ada! Shalom contended that the ordinance exempted several non-religious entities in addition to religious entities and therefore did not reflect a preference for religion. Judge Davis ruled in favor of Adat Shalom and the county. The court found that the ordinance was neutral toward religion and consistent with the Establishment Clause."

3\. America Online 5.0 Litigation

"I represented America Online (AOL) in a series of class-action lawsuits. In particular, I filed briefs and conducted oral arguments for AOL in a number of federal district courts around the country. I also argued a proceeding before the Judicial Panel on Multidistrict Litigation and a motion to dismiss in a related case in the Circuit Court for Baltimore City. The complaints in these cases alleged that AOL had engaged in a variety of deceptive tactics and antitrust violations in designing and marketing AOL Version 5.0."

4\. In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998), cert. denied, Office of the President v. Office of Independent Counsel

"I represented the United States (Office oflndependent Counsel) in this case. I briefed and argued the case in the U.S. Court of Appeals for the D.C. Circuit and worked on the brief in opposition to the petition for writ of certiorari in the Supreme Court of the United States. I also had worked on a petition for writ of certiorari before judgment to the Supreme Court. This case arose out of a federal grand jury subpoena issued to Bruce R. Lindsey, an attorney employed in the White House. President Clinton asserted a government attorney-client privilege in response to the subpoena. The Office of lndependent Counsel sought to have the subpoena enforced. The D.C. Circuit (Judges Randolph and Rogers for the majority; Judge Tatel in dissent) ruled in favor of the Office of lndependent Counsel. The Office of the President then filed a petition for writ of certiorari in the Supreme Court. The Supreme Court denied the petition."

5\. Gonzalez v. Reno

"I represented pro bono the American relatives of Elian Gonzalez in their petition for rehearing en bane in the U.S. Court of Appeals for the Eleventh Circuit, application for stay in the Supreme Court of the United States, and petition for writ of certiorari in the Supreme Court. The case came into my law firm through a contact made to an associate in the firm. The associate then asked me if! would be willing to work on the petition for rehearing en bane, application for stay, and petition for writ of certiorari. I agreed to do so.

The American relatives of Elian Gonzalez argued that the INS's decision to deny an asylum hearing or interview to Elian Gonzalez contravened both the Due Process Clause and the Refugee Act of 1980. The case also raised an important question about the appropriate amount of judicial deference to decisions of administrative agencies. The Eleventh Circuit initially had granted an injunction pending appeal on the ground that the Gonzalez family had made a compelling case that the Refugee Act of 1980 requires a hearing for alien children who may apply for asylum. The Eleventh Circuit's subsequent decision on the merits (Judges Edmondson, Dubina, and Wilson) held, however, that the INS's contrary interpretation of the statute was entitled to deference from the courts. The Gonzalez family filed a petition for rehearing en bane, arguing, in essence, that the court's original decision granting an injunction pending appeal had analyzed the issues correctly and that deference to the INS was not warranted. The Eleventh Circuit denied the petition for rehearing en bane. The Gonzalez family then filed an application for stay and petition for writ of certiorari in the Supreme Court. The Supreme Court denied both the application and the petition."

6\. In re Grand Jury Subpoena Duces Tecum

"I represented the United States (Office oflndependent Counsel) in this case. I primarily wrote the brief in the U.S. Court of Appeals for the Eighth Circuit and worked on the brief in opposition to the petition for writ of certiorari in the Supreme Court of the United States. I also briefed the case in the United States District Court for the Eastern District of Arkansas.

This case arose out of a federal grand jury subpoena issued to the White House Office for documents of a government attorney employed in the White House. President Clinton asserted a government attorney-client privilege in response to the subpoena. The Eighth Circuit (Judges Bowman and Wollman for majority; Judge Kopf in partial dissent) ruled in favor of the United States, represented by the Independent Counsel. The Office of the President then filed a petition for writ of certiorari in the Supreme Court. The Supreme Court denied the petition."

7\. Good News Club v. Milford Central School

"In this case, I represented an amicus curiae, Sally Campbell, and filed an amicus brief. The case involved a Free Speech Clause and Free Exercise Clause challenge to the community use policy of a school district in New York. The policy excluded religious organizations from using public school facilities after school hours. (Ms. Campbell had challenged a similar policy in Louisiana.) The question in the case was whether the exclusion of religious organizations was permitted under the Religion and Free Speech Clauses of the First Amendment. The amicus brief filed on behalf of Ms. Campbell argued that the policy was neither required nor permitted by the Constitution. The Supreme Court agreed in a 6-3 decision."

8\. Rubin v. United States

"I represented the United States (Office of Independent Counsel) in the Supreme Court proceedings in which the Office of Independent Counsel opposed a petition for writ of certiorari filed by the Secretary of the Treasury and Director of the Secret Service. The question presented was whether the federal courts should recognize a new "protective function" privilege in federal criminal proceedings that would prevent Secret Service agents from testifying in the grand jury. The U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of the Office of Independent Counsel (Judges Williams, D.H. Ginsburg, and Randolph). The Secretary of the Treasury filed a petition for writ of certiorari and sought a stay of enforcement of the subpoena. The Supreme Court denied a stay and then denied the petition for writ of certiorari ( over the dissents of Justices Ginsburg and Breyer)."

9\. General Motors v. Green

"General Motors was a significant institutional client of my former firm, Kirkland & Ellis. In this particular case, I was asked to represent General Motors and conduct oral argument on its behalf in the Appellate Division of the New Jersey Superior Court before Judges Dreier, Levy, and Wecker. The case was a design defect products liability case involving an alleged roof design defect. At trial, the jury had found General Motors liable and awarded plaintiff $25 million. General Motors appealed on numerous grounds, challenging both the liability judgment and damages award. The Appellate Division affirmed the liability judgment and substantially reduced the damages award."

10\. Lewis v. Brunswick

"I represented General Motors in filing an amicus brief in the Supreme Court. The question presented in the case was whether the Boat Safety Act preempted a state common-law requirement that recreational boats be equipped with propeller guards. Because of the similarity of the question to a question under the National Traffic and Motor Vehicle Safety Act, General Motors filed an amicus brief. The Supreme Court subsequently dismissed the case after oral argument because the parties settled."

## Noteworthy events[edit]

### Tested positive for coronavirus on September 30, 2021[edit]

See also: Politicians, candidates, and government officials diagnosed with or quarantined due to the coronavirus (COVID-19) pandemic, 2020

Coronavirus pandemic
Select a topic from the dropdown below to learn more.

Political responses overviewState reopening plansDocumenting America's Path to RecoveryDaily updatesElection changesChanges to vote-by-mail and absentee voting proceduresFederal responsesState responsesState executive ordersStay-at-home ordersMultistate agreementsNon-governmental reopening plansEvictions and foreclosures policiesTravel restrictionsEnacted state legislationState legislative session changesSchool closuresState court closuresInmate releasesLocal government responsesDiagnosed or quarantined politiciansBallot measure changesArguments about government responsesThe 1918 influenza pandemicPandemic Response Accountability CommitteeUnemployment filingsLawsuitsBallotpedia's polling on the coronavirus pandemicSubmit

On October 1, 2021, the Supreme Court announced in a press release that Kavanaugh tested positive for COVID-19 on September 30. The press release said Kavanaugh was fully vaccinated at the time he contracted the virus.[35]

## See also[edit]

* Supreme Court of the United States
* Supreme Court cases, October term 2020-2021
* Nomination of Brett Kavanaugh to the U.S. Supreme Court
* United States Court of Appeals for the District of Columbia Circuit

## External links[edit]

* Supreme Court of the United States website
* Judge Brett Kavanaugh Biography from the Federal Judicial Center
* Profile by Oyez
* Profile from the Supreme Court Historical Society

## Footnotes[edit]

1. ↑ CNN, "Brett Kavanaugh sworn in as Supreme Court justice," October 6, 2018
2. ↑ Oyez, "Brett Kavanaugh," accessed January 31, 2019
3. ↑ 3.0 3.1 Federal Judicial Center, "Kavanaugh, Brett M.," accessed April 16, 2021
4. ↑ SCOTUSblog, "Potential nominee profile: Brett Kavanaugh," June 28, 2018
5. ↑ American Enterprise Institute, "From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist," accessed April 16, 2021
6. ↑ Oyez, "Brett Kavanaugh," accessed August 13, 2019
7. ↑ SCOTUSBlog, "Final Stat Pack for October Term 2019 (updated)," July 10, 2020
8. ↑ 8.0 8.1 8.2 8.3 New Civil Liberties Alliance, "NCLA Ranks the Short List of Candidates to Replace Justice Kennedy," accessed April 16, 2021
9. ↑ "New Civil Liberties Alliance", "Mission," accessed April 16, 2021
10. ↑ 10.00 10.01 10.02 10.03 10.04 10.05 10.06 10.07 10.08 10.09 10.10 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
11. ↑ Common Dreams, "Kavanaugh Has Publicly Discussed Cases Before, Including Those He Would Like to Overturn," September 5, 2018
12. ↑ C-SPAN, "Judge Brett Kavanaugh Supreme Court Nomination Announcement," July 9, 2018
13. ↑ American Bar Association "Ratings of Article III and Article IV judicial nominees," accessed April 16, 2021
14. ↑ 14.0 14.1 Congress.gov, "PN2259 — Brett M. Kavanaugh — Supreme Court of the United States," accessed October 8, 2018
15. ↑ Law 360, "Judge Kavanaugh Stops DC Circ. Work For Confirmation Fight," July 17, 2018
16. ↑ Supreme Court of the United States, "Press Releases," June 27, 2018
17. ↑ The Washington Post, "Watch Brett Kavanaugh's full acceptance speech after Trump nomination," July 9, 2018
18. ↑ Congress.gov, "PN1179 — Brett M. Kavanaugh — The Judiciary," accessed April 16, 2021
19. ↑ SCOTUSblog, "2020-21 Stat pack: Justice Agreement," July 2, 2021
20. ↑ SCOTUSblog, "Justice Agreement," accessed September 21, 2020
21. ↑ Due to a change in the stat pack format, the agreement rate uses the rate of agreement in judgment.
22. ↑ SCOTUSblog, "2020-21 Stat pack: Frequency in the majority," July 2, 2021
23. ↑ SCOTUSblog, "Frequency in the Majority," accessed September 21, 2020
24. ↑ 24.0 24.1 U.S. Supreme Court, TransUnion LLC v. Ramirez, decided June 25, 2021
25. ↑ 25.0 25.1 Supreme Court of the United States, McKinney v. Arizona, decided February 25, 2020
26. ↑ 26.0 26.1 Supreme Court of the United States, Barton v. Barr, decided April 23, 2020
27. ↑ 27.0 27.1 Supreme Court of the United States, Thole v. U.S. Bank, decided June 1, 2020
28. ↑ Supreme Court of the United States, Manhattan Community Access Corp. v. Halleck, decided June 17, 2019
29. ↑ Supreme Court of the United States, "Apple Inc. v. Pepper," May 13, 2019
30. ↑ Lyle Denniston Law News, "LARRY ELLIOTT KLAYMAN, ET AL., APPELLEES v. BARACK OBAMA, ET AL., APPELLANTS," accessed July 23, 2018
31. ↑ Lyle Denniston Law News, "Larry Elliott Klayman v. Barack Obama," accessed July 24, 2018
32. ↑ Supreme Court of the United States, Environmental Protection Agency v. EME Homer City Generation L.P., decided April 29, 2014
33. ↑ Oyez.org, "Environmental Protection Agency v. EME Homer City Generation," accessed October 9, 2017
34. ↑ Committee on the Judiciary, "QUESTIONNAIRE FOR NOMINEE TO THE SUPREME COURT," accessed July 26, 2018
35. ↑ WOWT, "Justice Kavanaugh tests positive for COVID-19, has no symptoms," October 1, 2021

Political offices

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