Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court
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Judge Brett M. Kavanaugh: His Jurisprudence
and Potential Impact on the Supreme Court
Andrew Nolan, Coordinator
Section Research Manager
Updated August 21, 2018
Congressional Research Service
7-....
www.crs.gov
R45293
SUMMARY
Judge Brett M. Kavanaugh: His Jurisprudence
and Potential Impact on the Supreme Court
R45293
August 21, 2018
Andrew Nolan,
On July 9, 2018, President Donald J. Trump announced the nomination of Judge Brett M.
Coordinator
Section Research Manager
Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill
-re-acte--@crs.loc.gov
retiring Justice Anthony M. Kennedy’s seat on the Supreme Court of the United States.
Nominated to the D.C. Circuit by President George W. Bush, Judge Kavanaugh has served on
For a copy of the full report,
that court for more than twelve years. In his role as a Circuit Judge, the nominee has authored
please call 7-.... or visit
roughly three hundred opinions (including majority opinions, concurrences, and dissents) and
www.crs.gov.
adjudicated numerous high-profile cases concerning, among other things, the status of wartime
detainees held by the United States at Guantanamo Bay, Cuba; the constitutionality of the current
structure of the Consumer Financial Protection Bureau; the validity of rules issued by the Environmental Protection Agency
under the Clean Air Act; and the legality of the Federal Communications Commission’s net neutrality rule. Since joining the
D.C. Circuit, Judge Kavanaugh has also taught courses on the separation of powers, national security law, and constitutional
interpretation at Harvard Law School, Yale Law School, and the Georgetown University Law Center.
Prior to his appointment to the federal bench in 2006, Judge Kavanaugh served in the George W. Bush White House, first as
associate and then senior associate counsel, before becoming assistant and staff secretary to the President. Before his service
in the Bush Administration, the nominee worked in private practice at the law firm of Kirkland & Ellis, LLP for three years
and served in the Office of the Independent Counsel and the Office of the Solicitor General. Judge Kavanaugh began his legal
career with three federal clerkships—two for judges on the federal courts of appeals and one for the jurist he is nominated to
succeed, Justice Kennedy. Judge Kavanaugh is a graduate of Yale College and Yale Law School.
Judge Kavanaugh’s nomination to the High Court is particularly significant as he would be replacing Justice Kennedy, who
was widely recognized as the Roberts Court’s median vote. Justice Kennedy was often at the center of legal debates on the
Supreme Court, casting decisive votes on issues ranging from the powers of the federal government vis-à-vis the states, to
separation-of-powers disputes, to key civil liberties issues. Accordingly, a critical question now before the Senate as it
considers providing its advice and consent to the President’s nomination to the High Court is how Judge Kavanaugh may
view the many legal issues in which Justice Kennedy’s vote was often determinative.
In this vein, understanding Judge Kavanaugh’s views on the law is one method to gauge how the Supreme Court might be
affected by his appointment. In attempting to ascertain how Judge Kavanaugh could influence the High Court, however, it is
important to note at the onset that, for various reasons, it often is difficult to predict accurately a nominee’s likely
contributions to the Court based on his or her prior experience. That said, the nominee is a well-known jurist with a robust
record, composed of both judicial opinions and non-judicial writings, in which he has made his views on the law and the role
of the judge fairly clear. Central to the nominee’s judicial philosophy is the concept of judicial formalism and a belief that the
“rule of law” must be governed by a “law of rules.” In addition, Judge Kavanaugh has endorsed the concept of the judge as a
neutral “umpire.” In order to achieve this vision of neutrality, the nominee’s legal writings have emphasized (1) the primacy
of the text of the law being interpreted, (2) an awareness of history and tradition, and (3) adherence to precedent. Applying
these principles, Judge Kavanaugh’s views on several discrete legal issues are readily apparent, including administrative law,
environmental law, freedom of speech, national security, the Second Amendment, and separation of powers. At the same
time, perhaps because of the nature of the D.C. Circuit’s docket, less is known about the nominee’s views on other legal
issues, including business law, civil rights, substantive due process, and takings law.
This report provides an overview of Judge Kavanaugh’s jurisprudence and discusses his potential impact on the Court if he
were to be confirmed to succeed Justice Kennedy. In particular, the report focuses upon those areas of law where Justice
Kennedy can be seen to have influenced the High Court’s approach to certain issues or served as a fifth and deciding vote on
the Court, with a view toward how Judge Kavanaugh might approach these same issues if he were to be elevated to the High
Court. Of particular note, the report includes an Appendix with several tables that summarize the nominee’s rate of authoring
concurring and dissenting opinions relative to his colleagues on the D.C. Circuit, and how Judge Kavanaugh’s opinions as an
appellate judge have fared upon review by the Supreme Court.
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Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court
Contents
Predicting Nominees’ Future Decisions on the Court ..................................................................... 6
Judge Kavanaugh’s Judicial Approach, Philosophy, and Influences .............................................. 11
The Craft of Judging ................................................................................................................ 11
Judicial Philosophy ................................................................................................................. 19
Judicial Influences................................................................................................................... 31
Statutory Interpretation.................................................................................................................. 34
General Theory........................................................................................................................ 35
Application and Interpretive Tools .......................................................................................... 36
Severability ............................................................................................................................. 42
Administrative Law ....................................................................................................................... 44
Justiciability Issues.................................................................................................................. 45
Statutory Review ..................................................................................................................... 48
Discretionary and Factual Review .......................................................................................... 56
Conclusion .............................................................................................................................. 58
Business Law................................................................................................................................. 59
Antitrust Law .......................................................................................................................... 60
Labor Law ............................................................................................................................... 65
Securities Law ......................................................................................................................... 68
Conclusion .............................................................................................................................. 71
Civil Rights.................................................................................................................................... 73
Statutory Civil Rights Law...................................................................................................... 74
Voting Rights ........................................................................................................................... 79
Conclusion .............................................................................................................................. 83
Criminal Law and Procedure ......................................................................................................... 85
Fourth Amendment.................................................................................................................. 86
Constitutional Issues in Criminal Sentencing ......................................................................... 89
Other Criminal Procedure Issues ............................................................................................ 90
Substantive Criminal Law ....................................................................................................... 92
Cruel and Unusual Punishments Under the Eighth Amendment ............................................ 93
Conclusion .............................................................................................................................. 93
Environmental Law ....................................................................................................................... 95
Standing to Sue in Environmental Cases ................................................................................ 95
Substantive Environmental Law ............................................................................................. 98
Conclusion ............................................................................................................................ 104
Federalism ................................................................................................................................... 106
Freedom of Religion ..................................................................................................................... 110
Establishment Clause ............................................................................................................. 110
Free Exercise Clause and RFRA ............................................................................................ 114
Freedom of Speech ....................................................................................................................... 118
Political Speech, Political Spending, and Speaker-Based Distinctions .................................. 119
Free Speech and the Modern Communications Marketplace ................................................ 122
Commercial Speech and Commercial Disclosures ............................................................... 126
Limits on First Amendment Protections................................................................................ 130
Conclusion ............................................................................................................................ 131
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Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court
National Security ......................................................................................................................... 133
Second Amendment ..................................................................................................................... 140
Separation of Powers ................................................................................................................... 145
Judge Kavanaugh’s General Theory of the Separation of Powers ........................................ 146
Judicial Role in Maintaining the Separation of Powers ........................................................ 149
Presidential Execution of the Law ........................................................................................ 151
Legislator and Presidential Immunity ................................................................................... 153
Executive Privilege ............................................................................................................... 157
Executive Compliance with a Subpoena ............................................................................... 160
Structural Design of Independent Agencies .......................................................................... 161
Substantive Due Process and Fundamental Rights...................................................................... 167
Abortion Jurisprudence ......................................................................................................... 168
Substantive Due Process Cases Decided Under Glucksberg ................................................ 172
Conclusion ............................................................................................................................ 175
Takings ........................................................................................................................................ 176
Tables
Table A-1. Dissents and Concurrences Authored on the D.C. Circuit* ....................................... 177
Table A-2. Majority Opinions That Drew Dissents and Concurrences on the D.C. Circuit* ...... 178
Table A-3. Supreme Court Review of D.C. Circuit Cases in Which Judge Kavanaugh
Joined or Authored an Opinion* .............................................................................................. 179
Table A-4. Supreme Court Opinions (Majority, Concurrences, and Dissents) Citing Judge
Kavanaugh’s Separate Opinions* ............................................................................................ 182
Table A-5. Supreme Court Opinions (Majority, Concurrences, and Dissents) Citing D.C.
Circuit Judges’ Separate Opinions* ......................................................................................... 185
Table A-6. Supreme Court Opinions (Majority, Concurrences, and Dissents) Citing
Federal Appellate Court Judges’ Separate Opinions* .............................................................. 187
Appendixes
Appendix. Judge Kavanaugh by the Numbers ............................................................................ 177
Contacts
Author Contact Information ........................................................................................................ 190
Congressional Research Service
Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court
n July 9, 2018, President Donald J. Trump announced the nomination of Judge Brett M.
O
Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit (D.C.
Circuit)1 to fill the vacancy on the Supreme Court of the United States caused by Justice
Anthony M. Kennedy’s retirement on July 31, 2018.2 Nominated by President George W.
Bush to the D.C. Circuit, a court once described by President Franklin Roosevelt as “the second
most important court in the country,”3 Judge Kavanaugh has served on the bench for more than
twelve years.4 In his role as a Circuit Judge, the nominee has authored roughly three hundred
opinions (including majority opinions, concurrences, and dissents)5 and adjudicated numerous
high-profile cases concerning, among other things, the status of wartime detainees held by the
United States at Guantanamo Bay, Cuba;6 the constitutionality of the current structure of the
Consumer Financial Protection Bureau (CFPB);7 the validity of rules issued by the Environmental
Protection Agency (EPA) under the Clean Air Act;8 and the legality of the Federal
Communications Commission’s (FCC’s) net neutrality rule.9 Since joining the D.C. Circuit,10
Judge Kavanaugh has also taught courses on the separation of powers, national security law, and
constitutional interpretation at Harvard Law School, Yale Law School, and the Georgetown
University Law Center.11
Prior to his appointment to the federal bench in 2006, Judge Kavanaugh served in the George W.
Bush White House, first as an associate and then senior associate counsel, before becoming an
assistant and staff secretary to the President.12 Before his service in the Bush Administration, the
nominee worked in private practice at the law firm of Kirkland & Ellis, LLP for three years and
1 See Press Release, President Donald J. Trump Announces Intent to Nominate Judge Brett M. Kavanaugh to the
Supreme Court of the United States (July 9, 2018), https://www.whitehouse.gov/presidential-actions/president-donaldj-trump-announces-intent-nominate-judge-brett-m-kavanaugh-supreme-court-united-states/. See generally CRS Legal
Sidebar LSB10168, President Trump Nominates Judge Brett Kavanaugh: Initial Observations, by Andrew Nolan.
2 Letter from Anthony M. Kennedy, Associate Justice, Supreme Court of the United States, to Donald J. Trump,
President, United States of America (June 27, 2018), https://www.supremecourt.gov/publicinfo/press/
Letter_to_the_President_June27.pdf.
3 SHELDON GOLDMAN, PICKING FEDERAL JUDGES: LOWER COURT SELECTION FROM ROOSEVELT THROUGH REAGAN 26
(1997).
4 Brett M. Kavanaugh: Professional Biography, U.S. COURT OF APPEALS FOR THE D.C. CIR.,
https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL+-+Judges+-+BMK (last visited July 20, 2018)
[hereinafter Kavanaugh Biography]; Kavanaugh, Brett M., BIOGRAPHICAL DIRECTORY OF FEDERAL JUDGES, FED.
JUDICIAL CTR., https://www.fjc.gov/history/judges/kavanaugh-brett-m (last visited July 20, 2018) [hereinafter FJC
Biography].
5 See CRS Report R45269, Judicial Opinions of Judge Brett M. Kavanaugh, coordinated by Michael John Garcia
[hereinafter CRS Kavanaugh Opinions Report]; see also Judge Brett Kavanaugh’s 188 Majority Opinions, 52
Concurrences, and 57 Dissents, CIR. BREAKER, https://dccircuitbreaker.org/kavanaugh-opinions/ (last visited July 20,
2018).
6 See Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010).
7 See PHH Corp. v. CFPB, 881 F.3d 75 (D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting); PHH Corp. v. CFPB,
839 F.3d 1, 5 (D.C. Cir. 2016), reh’g en banc granted, order vacated (Feb. 16, 2017).
8
See EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 11 (D.C. Cir. 2012), rev’d and remanded, 134 S. Ct. 1584
(2014).
9 See U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 417 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of
rehearing en banc).
10 For purposes of brevity, references to a particular circuit in the body of this report (e.g., the D.C. Circuit, the Second
Circuit, etc.) refer to the U.S. Court of Appeals for that particular circuit. Collectively, the federal appellate courts are
termed “federal courts of appeals.”
11 See Kavanaugh Biography, supra note 4.
12 Id.
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served in the Office of the Independent Counsel and the Office of the Solicitor General.13 Judge
Kavanaugh began his legal career with three federal clerkships—two for judges on the federal
courts of appeals and one for the jurist he is nominated to succeed, Justice Kennedy.14 Judge
Kavanaugh is a graduate of Yale College and Yale Law School.15
This report provides an overview of Judge Kavanaugh’s jurisprudence and discusses how the
Supreme Court might be affected if he were to succeed Justice Kennedy. In attempting to
ascertain how Judge Kavanaugh could influence the High Court, however, it is important to note
that, for various reasons, it is difficult to predict accurately a nominee’s likely contributions to the
Court based on his or her prior experience. A section of this report titled Predicting Nominees’
Future Decisions on the Court provides a broad context and framework for evaluating how
determinative a judge’s prior record may be in predicting future votes on the Supreme Court.16
Because Judge Kavanaugh would succeed Justice Kennedy on the High Court, the report then
focuses on those areas of law where Justice Kennedy can be seen to have influenced the Court’s
approach, or provided a fifth and deciding vote,17 with a view toward how the nominee might
approach those same issues.18 Justice Kennedy’s retirement is likely to have significant
implications for the Court, Congress, and the nation as a whole.19 Justice Kennedy, often
described as the Roberts Court’s median vote,20 was frequently at the center of legal debates on
13 Id.
14 Id. One of Judge Kavanaugh’s co-clerks with Justice Kennedy was future-Justice Neil M. Gorsuch. As has been
widely reported, Judge Kavanaugh and Justice Gorsuch also attended the same high school—Georgetown Preparatory
School in Washington, D.C.—where they were two years apart. See, e.g., Michelle Hackman, The All-Boys High
School Producing GOP Bigwigs, WALL ST. J. (July 11, 2018), https://www.wsj.com/articles/the-all-boys-high-schoolproducing-gop-bigwigs-1531310401; Moriah Balingit, With Brett Kavanaugh, Georgetown Prep Can Count Two
Supreme Court Nominees Among its Alumni, WASH. POST (July 10, 2018), https://www.washingtonpost.com/news/
education/wp/2018/07/10/with-brett-kavanaugh-georgetown-prep-can-count-two-supreme-court-nominees-among-itsalumni/?utm_term=.62191f877a56; Sarah Mervosh, Kavanaugh and Gorsuch Both Went to the Same Elite Prep
School, N.Y. TIMES (July 10, 2018), https://www.nytimes.com/2018/07/10/us/kavanaugh-gorsuch-georgetownprep.html; Brittany Shepherd, Trump’s Two SCOTUS Picks Also Went to High School Together, WASHINGTONIAN (July
9, 2018), https://www.washingtonian.com/2018/07/09/brett-kavanaugh-neil-gorsuch-georgetown-prep/. Of Justice
Gorsuch, Judge Kavanaugh has said:
[Justice Gorsuch] and I actually went to high school together at Georgetown Prep. I was two years
ahead of him. And then we clerked together the same year for Justice Kennedy and got to know
each other very well. We worked together in the Bush Administration, and we both became judges
in 2006. We serve together now on the Appellate Rules Committee of the Judicial Conference, and
were coauthors along with Bryan Garner and several other judges of a book on precedent. . . . So I
know [Justice] Gorsuch well and have known him seemingly forever. He is a good friend. He is
kind, funny, hard working, and brilliant. He’s a great writer and independent. With his smarts, his
character, and his understanding of life and law, I firmly believe he will be one of the great Justices
in Supreme Court history, like a Jackson or a Scalia.
Brett M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., Keynote Address: Two Challenges for the
Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions (Feb. 3, 2017), in 92 NOTRE DAME L. REV. 1907
(May 2017) [hereinafter Kavanaugh, Two Challenges].
15 Kavanaugh Biography, supra note 4.
16 See discussion infra in Predicting Nominees’ Future Decisions on the Court.
17 These areas are noted in CRS Report R45256, Justice Anthony Kennedy: His Jurisprudence and the Future of the
Court, by Andrew Nolan, Kevin M. Lewis, and Valerie C. Brannon [hereinafter CRS Kennedy Report].
18 See id. at 31–67 (noting every case in which Justice Kennedy cast a decisive vote on the Roberts Court).
19 See id.
20 Alicia Parlapiano & Jugal K. Patel, With Kennedy’s Retirement, the Supreme Court Loses Its Center, N.Y. TIMES
(June 27, 2018), https://www.nytimes.com/interactive/2018/06/27/us/politics/kennedy-retirement-supreme-courtmedian.html.
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the High Court, casting decisive votes on issues ranging from the powers of the federal
government vis-à-vis the states, to separation-of-powers disputes, to key civil liberties issues.
Accordingly, a critical question now before the Senate as it considers providing its advice and
consent21 to the President’s nomination to the High Court is how Judge Kavanaugh may view the
many legal issues in which Justice Kennedy’s vote was often determinative.22
As a result, the report begins by discussing two cross-cutting issues—the nominee’s general
judicial philosophy and his approach to statutory interpretation. It then addresses thirteen separate
areas of law, arranged in alphabetical order, from “administrative law” to “takings.” Within each
section, the report reviews whether and how Judge Kavanaugh has addressed particular issues in
the opinions he authored.23 In some instances, the report also identifies other votes in which he
participated (e.g., votes to join majority opinions authored by other D.C. Circuit judges, votes on
whether the D.C. Circuit should grant en banc review to a decision of a three-judge panel, etc.).
The report also analyzes, where relevant, Judge Kavanaugh’s non-judicial work, including a
21 U.S. CONST. art. II, § 2, cl. 2.
22 Judge Kavanaugh has himself commented on the judicial confirmation process, opining that it “has become badly
flawed in recent decades.” See Brett M. Kavanaugh, Separation of Powers During the Forty-Fourth Presidency and
Beyond, 93 MINN. L. REV. 1454, 1465–66 (2009) [hereinafter Kavanaugh, Separation of Powers]. The nominee has
also offered a number of suggestions to improve the process. See id. at 1468 (“The Senate should consider a rule
ensuring that every judicial nominee receives a vote by the Senate within 180 days of being nominated by the
President. Six months is sufficient time for senators to hold hearings, interest groups to register their preferences, and
citizens to weigh in on the qualifications of a judicial nominee for lifetime office. At the end of that time, it seems that
senators should stand and be counted. If a home-state senator or a group of ideologically-committed senators wishes to
block a judicial nomination, they can do so. But they can do so by persuading their colleagues and voting, not through
procedural maneuvers. In this way, voters can properly hold their senators accountable, nominees can receive prompt
and respectful treatment, and key judicial vacancies can be filled without unnecessary delay.”); see also Brett M.
Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., The Courts and the Administrative State (Oct. 1,
2013), in 64 CASE W. RES. L. REV. 711, 715 (2014) [hereinafter Kavanaugh, Administrative State] (“My personal view
is that the Senate should require a vote on all judicial nominees within six months of nomination. That would provide a
set ground rule for how the Senate would consider the nominees. Now, it is not my place to say whether that should be
a majority vote or what the Senate calls—in Washington speak—a cloture vote that requires sixty votes for something
to happen. But either way, the Senate in my view should establish a strict time limit so that the process will come to a
final determination within a set amount of time.”).
23 Judge Kavanaugh has also sat by designation on panels for the Eighth Circuit, the Ninth Circuit, and the U.S. District
Court for the District of Columbia. While he did not author an opinion while sitting by designation on either of the
circuit courts, he did author three opinions and joined a memorandum opinion and order of the U.S. District Court for
the District of Columbia. See Beaumont Indep. Sch. Dist. v. United States, 944 F. Supp. 2d 23, 24 (D.D.C. 2013)
(Kavanaugh, J., joining memorandum opinion and order); South Carolina v. United States, 898 F. Supp. 2d 30 (D.D.C.
2012) (Kavanaugh, J.); Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011) (Kavanaugh, J.), aff’d, 565 U.S. 1104
(2012); Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) (Kavanaugh, J.), aff’d, 561 U.S. 1040
(2010).
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number of speeches24 and academic articles,25 many of which address the role of the judiciary,
separation of powers, and constitutional and statutory interpretation.
While this report discusses many of Judge Kavanaugh’s non-judicial writings, it does not address
two types of written work. First, the report does not discuss anything written by the nominee in a
representative capacity for another party, such as a brief submitted on behalf of a client to a court,
as such materials may provide limited insight into the advocate’s personal views on the law.26 For
purposes of this report, this limitation also extends to writings related to Judge Kavanaugh’s
former government service, such as his work for the George W. Bush Administration, the Office
of the Independent Counsel, and the Office of the Solicitor General.27 Second, the report does not
24 See, e.g., Brett M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., The Role of the Judiciary in
Maintaining the Separation of Powers (Oct. 25, 2017), in HERITAGE FOUND., LECTURE (Feb. 1., 2018),
https://www.heritage.org/sites/default/files/2018-02/HL1284.pdf [hereinafter Kavanaugh, Role of the Judiciary]; Brett
M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., From the Bench: The Constitutional
Statesmanship of Chief Justice William Rehnquist (Sept. 18, 2017), in AM. ENTER. INST., 2017 WALTER BERNS
CONSTITUTION DAY LECTURE, at 6, 18 (2017), https://www.aei.org/wp-content/uploads/2017/12/From-the-Bench.pdf
[hereinafter Kavanaugh, From the Bench]; Kavanaugh, Two Challenges, supra note 14; Brett M. Kavanaugh, Circuit
Judge, U.S. Court of Appeals for the D.C. Cir., The Judge As Umpire: Ten Principles (Mar. 30, 2015), in 65 CATH. U.
L. REV. 683 (2016) [hereinafter Kavanaugh, Judge As Umpire]; Kavanaugh, Administrative State, supra note 22; Brett
M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., Our Anchor for 225 Years and Counting: The
Enduring Significance of the Precise Text of the Constitution, in 89 NOTRE DAME L. REV. 1907 (2014) [hereinafter
Kavanaugh, Our Anchor].
25 See, e.g., Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 HARV. L. REV. 2118 (2016) (reviewing ROBERT
A. KATZMANN, JUDGING STATUTES (2014)) [hereinafter Kavanaugh, Fixing Statutory Interpretation]; Kavanaugh,
Separation of Powers, supra note 22.
26 See Confirmation Hearing on Federal Appointments: Hearing Before the S. Comm. on the Judiciary Part 1, 108th
Cong. 419 (2003) (statement of John G. Roberts, Jr.) [hereinafter Roberts Confirmation Hearing] (“I do not believe that
it is proper to infer a lawyer’s personal views from the positions that lawyer may advocate on behalf of a client.”); but
see William G. Ross, The Questioning of Lower Federal Court Nominees During the Senate Confirmation Process, 10
WM. & MARY BILL RTS. J. 119, 161 (2001) (suggesting that, although “it is unlikely that judges would permit positions
that they advocated as attorneys to directly bias their judicial decisions,” and “most lawyers advocate positions about
which they hold indifferent or conflicting opinions,” it “often may” be possible to “discern a nominee’s political
predilections from the types of clients and cases that a nominee has had as an attorney”).
27 It should be noted, however, that the nominee has previously remarked that he believes his experiences in these
various roles were valuable to his career as a federal judge. See, e.g., Confirmation Hearing on the Nomination of Brett
Kavanaugh to be Circuit Judge for the District of Columbia Circuit Before the S. Comm. on the Judiciary, S. Hrg. 109435, at 33, 109th Congress (2006) (statement of Brett M. Kavanaugh) [hereinafter Kavanaugh, 2006 Confirmation
Hearing] (“I believe very much that it’s good to have judges who’ve participated in Government.”); see also
Kavanaugh, Role of the Judiciary, supra note 24, at 2 (“I think the White House experience made me a far better judge
than I otherwise would have been, in terms of understanding of government, of the legislative process, of the regulatory
process, of national security decision making, the pressure, the ups and downs and the ins and outs of how our
government operates at the very highest level. I believe my White House experience made me a more knowledgeable
judge, certainly, and also, a more independent judge. Independent because working at the White House, at least in my
view, helps give you the backbone and fortitude to say ‘no’ to the government—even when the stakes are high. I think
Chief Justice John Roberts and Justice Elena Kagan, both of whom had substantial White House experience, would
probably say that their White House experiences likewise have made them better jurists.”); Kavanaugh, Administrative
State, supra note 22, at 713–14 (“White House service, it turns out, is very useful for a job on the D.C. Circuit. It gives
you great respect, first of all, for the presidency, the demands of the executive branch, and the burdens of the
presidency. But at the same time, it gives you perspectives that might be unexpected to some. Such experience helps
refine your ability to determine whether the executive branch might be exaggerating or overstating how things actually
work and the problems that would supposedly arise under certain legal interpretations. White House experience also
helps—and history shows that executive branch experience helps—when judges need to show some fortitude and
backbone in those cases where the independent judiciary has to stand up to the mystique of the presidency and the
executive branch.”).
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discuss the nominee’s writings that predate his graduation from law school, as such writings may
be of limited import to gauging his educated views on the law.
While the report discusses numerous cases and votes involving Judge Kavanaugh, it focuses
particularly on cases in which the sitting panel was divided, as these cases arguably best
showcase how he might approach a legal controversy whose resolution is a matter of dispute and
is not necessarily clearly addressed by prior case law.28 In addition, the report highlights areas
where the nominee has expressed views on the law that may contrast with those of some of his
colleagues. To the extent that the nominee’s votes in particular cases arguably reflect broader
trends and tendencies in his decisionmaking that he might bring to the High Court, the report
highlights such trends. Nonetheless, this report does not attempt to catalog every matter in which
Judge Kavanaugh has participated during his service on the D.C. Circuit. A separate report, CRS
Report R45269, Judicial Opinions of Judge Brett M. Kavanaugh, coordinated by Michael John
Garcia, lists and briefly describes each opinion authored by the nominee during his tenure on the
federal bench.29 Other CRS products discuss various issues related to the vacancy on the Court.
For an overview of available products, see CRS Legal Sidebar LSB10160, Supreme Court
Nomination: CRS Products, by Andrew Nolan.
28 See Jonathan H. Adler, What Happened When Merrick Garland Wrote for Himself, VOLOKH CONSPIRACY (Mar. 21,
2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/21/what-happened-when-merrickgarland-wrote-for-himself/ (“The best way to get a handle on a circuit judge’s judicial philosophy is to look at the
judge’s concurrences and dissents.”); see also Aaron Nielson, D.C. Circuit Review—Reviewed: Brooding Spirits, YALE
J. ON REG.: NOTICE & COMMENT (Jan. 30, 2016), http://yalejreg.com/nc/d-c-circuit-review-reviewed-brooding-spiritsby-aaron-nielson/ (“[I]f you really want to understand an appellate judge, look to his or her separate writings. Of
course, most separate opinions don’t say much about the judge’s philosophy or personality; sometimes a judge thinks
the panel just got it wrong. Even so, despite the fact that not all separate writings are windows to the soul, it is still true
that reading opinions that judges don’t have to write can be telling.”).
29 CRS Kavanaugh Opinions Report, supra note 5.
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Predicting Nominees’ Future Decisions on the Court
At least as a historical matter, attempting to predict how Supreme Court nominees may approach
their work on the High Court is a task fraught with uncertainty.30 For example, Justice Felix
Frankfurter, who had a reputation as a “progressive” legal scholar prior to his appointment to the
Court in 1939,31 disappointed32 some early supporters by subsequently becoming a voice for
judicial restraint and caution when the Court reviewed laws that restricted civil liberties during
World War II33 and the early Cold War era.34 Similarly, Justice Harry Blackmun, who served on
the Eighth Circuit for a little over a decade prior to his appointment to the Court in 1970,35 was
originally considered by President Richard Nixon to be a “strict constructionist” in the sense that
he viewed the judge’s role as interpreting the law, rather than making new law.36 In the years that
followed, however, Justice Blackmun authored the majority opinion in Roe v. Wade, which
recognized a constitutional right to terminate a pregnancy.37 He was generally considered one of
the more liberal voices on the Court when he retired in 1994.38
30 Christine Kexel Chabot & Benjamin Remy Chabot, Mavericks, Moderates, or Drifters? Supreme Court Voting
Alignments, 1838–2009, 76 MO. L. REV. 999, 1040 (2011) (“[U]ncertainty is empirically well-founded. It is borne out
by Justices’ overall voting records since at least 1838. The president’s odds of appointing a Justice who sides with
appointees of his party have been no better than a coin flip.”); id. at 1021 (listing Justices William J. Brennan Jr., Tom
C. Clark, Felix Frankfurter, Oliver Wendell Holmes Jr., John McLean, James Clark McReynolds, Stanley Forman
Reed, David Souter, John Paul Stevens, Earl Warren, and James Moore Wayne as examples of jurists who
“disappointed” the expectations of the President who appointed them to the Court); see also The Judicial Nomination
and Confirmation Process: Hearings Before the Subcomm. on Admin. Oversight & the Courts, S. Comm. on the
Judiciary, 107th Cong. 195 (2001) (statement of Douglas W. Kmiec, Dean & St. Thomas More Professor of Law, The
Catholic University of America) (similar).
31 See Joseph L. Rauh, Jr., An Unabashed Liberal Looks at a Half-Century of the Supreme Court, 69 N.C. L. REV. 213,
220 (1990) (“When Frankfurter took his seat on the Supreme Court in January 1939, almost everyone assumed that he
would become the dominant spirit and intellectual leader of the new liberal Court. After all, he had been, in the words
of Brandeis, ‘the most useful lawyer in the United States’: defender of Tom Mooney, the alien victims of the Palmer
Red Raids, the striking miners of Bisbee, Arizona, Sacco and Vanzetti, and too many others to mention.”); JAMES F.
SIMON, THE ANTAGONISTS: HUGO BLACK, FELIX FRANKFURTER AND CIVIL LIBERTIES IN MODERN AMERICA 13–16, 46–
47 (1989) (noting fears in some political circles that Justice Frankfurter was a Communist or Communist sympathizer,
“inspir[ing] American conservatives to label Frankfurter a dangerous radical”); see generally NOAH FELDMAN,
SCORPIONS: THE BATTLES AND TRIUMPHS OF FDR’S GREAT SUPREME COURT JUSTICES 14, 21–27 (2010).
32 See, e.g., Rauh, supra note 31, at 220 (“But . . . a deep belief in judicial restraint in all matters overtook even [Justice
Frankfurter’s] lifelong dedication to civil liberties.”).
33 See, e.g., Korematsu v. United States, 323 U.S. 214, 225 (1944) (Frankfurter, J., concurring) (contending that the
propriety of the Japanese-American civilian exclusion order was the “business” of Congress and the Executive, not the
Court); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 646 (1943) (Frankfurter, J., dissenting) (arguing for the
constitutionality of a World War II-era law requiring students to salute the flag).
34 See, e.g., Dennis v. United States, 341 U.S. 494, 556 (1951) (Frankfurter, J., concurring) (upholding the conviction of
three defendants under the Smith Act for conspiracy to organize the Communist Party as a group advocating the
overthrow of the U.S. government by force).
35 See Blackmun, Harry Andrew, BIOGRAPHICAL DIRECTORY OF FEDERAL JUDGES, FED. JUDICIAL CTR.,
https://www.fjc.gov/history/judges/blackmun-harry-andrew (last visited Aug. 13, 2018).
36 See BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 97 (1979) (“Nixon found
Blackmun’s moderate conservatism perfect. . . . [Blackmun] had a . . . predictable, solid body of opinions that
demonstrated a levelheaded, strict-constructionist philosophy. . . . Blackmun was a decent man, consistent, wedded to
routine, unlikely to venture far.”).
37 410 U.S. 113 (1973).
38 See LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN 235 (2005) (declaring that, by 1994, “Harry Blackmun was,
by wide consensus, the most liberal member of the Supreme Court”).
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The difficulty in attempting to predict how a nominee will approach the job of being a Justice
remains even when the nominee has had a lengthy federal judicial career prior to nomination.39
Federal judges on the courts of appeals are bound by Supreme Court and circuit precedent40 and,
therefore, are not normally in a position to espouse freely their views on particular legal issues in
the context of their judicial opinions.41 Moreover, unlike the Supreme Court, which enjoys
“almost complete discretion” in selecting its cases, the federal courts of appeals are required to
hear many cases as a matter of law.42 As a result, the courts of appeals consider “many routine
cases in which the legal rules are uncontroverted.”43 Because lower court judges are often bound
by Supreme Court and circuit precedent, moreover, the vast majority44 of federal appellate
opinions are unanimous. Perhaps indicative of the nature of federal appellate work, the vast
majority of cases decided by three-judge panels of federal courts of appeals are decided without
dissent.45
While the D.C. Circuit, where Judge Kavanaugh serves, witnesses more dissents on average than
its sister circuits,46 the overwhelming majority of opinions issued by the nominee’s court are
unanimous.47 Accordingly, while Judge Kavanaugh’s work on the D.C. Circuit may provide some
39 Judge Kavanaugh has served for twelve years on the D.C. Circuit. See Kavanaugh Biography, supra note 4. If
confirmed, he would have the third-longest tenure on a federal appellate bench of the current members of the Court
after Justice Alito (sixteen years) and Justice Breyer (twelve years). See Alito, Samuel A., Jr., BIOGRAPHICAL
DIRECTORY OF FEDERAL JUDGES, FED. JUDICIAL CTR., https://www.fjc.gov/history/judges/alito-samuel-jr (last visited
Aug. 13, 2018); Breyer, Stephen Gerald, BIOGRAPHICAL DIRECTORY OF FEDERAL JUDGES, FED. JUDICIAL CTR.,
https://www.fjc.gov/history/judges/breyer-stephen-gerald (last visited Aug. 13, 2018).
40 See Brewster v. Comm’r of Internal Revenue, 607 F.2d 1369, 1373–74 (D.C. Cir. 1979) (explaining that future
panels are bound to follow precedent set by previous panels until the en banc court or Supreme Court overrules that
precedent); see generally Tuan Samahon, The Judicial Vesting Option: Opting Out of Nomination and Advice and
Consent, 67 OHIO ST. L.J. 783, 816 n.160 (2006) (“Vertical stare decisis binds hierarchically inferior federal appellate
judges to follow the Supreme Court’s on-point precedent. The relationship is vertical, or between inferior and
superior.”).
41 See RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 367 (2009) (“Supreme Court decisions
bind the courts of appeals in a way in which they do not bind the Court itself, and therefore narrow considerably the
scope for those courts to exercise choice.”); see also DAVID ALISTAIR YALOF, PURSUIT OF JUSTICES: PRESIDENTIAL
POLITICS AND THE SELECTION OF SUPREME COURT NOMINEES 171 (1999) (claiming that the nature of a judge’s work on
a federal court of appeals allows “most circuit judges [to] chart a course of moderation” and “more often than not, a
circuit judge’s opinions tend to betray outsiders’ perceptions of that judge as a sharp ideological extremist”).
42 Louis J. Sirico, Jr. & Beth A. Drew, The Citing of Law Reviews by the United States Courts of Appeals: An
Empirical Analysis, 45 U. MIAMI L. REV. 1051, 1052 n.8 (1991); see generally POSNER, supra note 41, at 367 (“[M]ore
of the work of [the federal appellate] courts really is technical. . . . Most of the appeals they get can be decided
uncontroversially by the application of settled principles”).
43 See Sirico & Drew, supra note 42, at 1052 n.8.
44 See Harry T. Edwards, Collegial Decision Making in the U.S. Courts of Appeals (N.Y.U. Sch. of Law, Pub. Law &
Legal Theory Research Paper Series, Working Paper No. 17-47, Nov. 2017).
45 See FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS 160 (2007) (noting the “relative paucity of
circuit court panel dissents”); Neil M. Gorsuch, Law’s Irony, 37 HARV. J.L. & PUB. POL’Y 743, 753 (2014) (“Over
ninety percent of the decisions issued by [the Tenth Circuit] are unanimous; that’s pretty typical of the federal appellate
courts.”).
46 See Edwards, supra note 44, at 70–71 (providing data indicating that, over a five-year period beginning on
September 30, 2011, roughly 4.5% of cases decided on the merits by the D.C. Circuit drew at least one dissenting
opinion, compared to the nationwide average of 1.3% for the geographic circuit courts of appeals).
47 See id.; see also Douglas H. Ginsburg, Circuit Judge, U.S. Court of Appeals for the D.C. Circuit, Remarks Upon
Receiving the Lifetime Service Award of the Georgetown Federalist Society Chapter, Georgetown University Law
Center (Apr. 26, 2011), in 10 GEO. J.L. & PUB. POL’Y 1, 7 (2012) (noting that in 2010, panels of the D.C. Circuit
“disposed of 873 cases, 191 of them with published opinions, but our nine active and four senior judges . . . issued a
total of only nineteen dissenting opinions”); Douglas H. Ginsburg & Brian M. Boynton, The Court En Banc: 1991–
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insight into his general approach to particular legal issues,48 the bulk of the opinions that the
nominee has authored or joined may not be particularly insightful with regard to his views on
specific areas of law, or how he would approach these issues if he were a Supreme Court Justice.
When a federal appellate judge takes the step to write separately, however, such an opinion need
not accommodate the views of other colleagues, and can therefore provide unique insight into a
circuit judge’s judicial approach.49
Even in closely contested cases where concurring or dissenting opinions are filed, however, it still
may be difficult to determine the preferences of the nominated judge if the nominee did not
actually write an opinion in the case.50 The act of joining an opinion authored by another judge
does not necessarily reflect full agreement with the underlying opinion.51 For example, in an
effort to promote consensus on a court, some judges will decline to dissent unless the underlying
issue is particularly contentious.52 As one commentator notes, “the fact that a judge joins in a
majority opinion may not be taken as indicating complete agreement. Rather, silent acquiescence
may be understood to mean something more like ‘I accept the outcome in this case, and I accept
that the reasoning in the majority opinion reflects what a majority of my colleagues has agreed
on.’”53
Using caution when interpreting a judge’s vote isolated from a written opinion may be
particularly important with votes on procedural matters. For example, a judge’s vote to grant an
extension of time for a party to submit a filing generally does not signal agreement with the
substantive legal position proffered by that party. And while some observers have highlighted
votes by Judge Kavanaugh in favor of having certain three-judge panel decisions reconsidered by
the D.C. Circuit sitting en banc, these votes should be viewed with a degree of caution. A vote to
2002, 70 GEO. WASH. L. REV. 259, 265 (2002) (noting that, from FY1995 through FY2001, a dissent was filed in only
9% of published decisions of the D.C. Circuit).
48 See YALOF, supra note 41, at 170 (“Although hardly dispositive, federal appellate opinions offer perhaps the best
gauge available for predicting an individual’s future voting behavior on the Supreme Court.”).
49 See, e.g., M. Todd Henderson, Citing Fiction, 11 GREEN BAG 2D 171, 181 (2008) (“[N]on-majority opinions are quite
different in tone and purpose. When a judge dissents or concurs, the shackles are removed . . . .”).
50 See Bert I. Huang & Tejas N. Narechania, Judicial Priorities, 163 U. PA. L. REV. 1719, 1754–55 (2015) (suggesting
that the “presence of a concurrence or dissent serves as a signal” that the case before the court is a “hard case”); see
generally Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV.
1371, 1412–15 (1995) (noting the motivations that prompt judges to write concurring or dissenting opinions); Diane P.
Wood, When to Hold, When to Fold, When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court, 100
CAL. L. REV. 1445, 1451–57 (2012) (describing the considerations that prompt judges to author separate opinions).
51 See Irin Carmon, Opinion, Justice Ginsburg’s Cautious Radicalism, N.Y. TIMES (Oct. 24, 2015),
http://www.nytimes.com/2015/10/25/opinion/sunday/justice-ginsburgs-cautious-radicalism.html (quoting Justice Ruth
Bader Ginsburg as remarking that “an opinion of the court very often reflects views that are not 100 percent what the
opinion author would do, were she writing for herself”).
52 See Sanford Levinson, Trash Talk at the Supreme Court: Reflections on David Pozen’s Constitutional Good Faith,
129 HARV. L. REV. F. 166, 174 (2016) (declaring the assumption that “all adjudicators are splendidly isolated” is
“foolish,” and arguing that it may be “incumbent” upon judges to engage in “intellectual compromise[s]” “to serve the
public weal”). There is an academic debate as to whether the decision to join a concurrence or dissent signals complete
agreement with that opinion. Compare Robert H. Smith, Uncoupling the “Centrist Bloc”—An Empirical Analysis of
the Thesis of A Dominant, Moderate Bloc on the United States Supreme Court, 62 TENN. L. REV. 1, 10 n.36 (1994)
(arguing that “decisions to join or not join others’ opinions may in fact be influenced by a number of factors” outside of
a judge’s agreement with that decision), with Jason J. Czarnezki et al., An Empirical Analysis of the Confirmation
Hearings of the Justices of the Rehnquist Natural Court, 24 CONST. COMMENT. 127, 143 (2007) (“[A] decision to join a
special opinion is a more finely tuned tool, one that almost certainly indicates agreement not just with the outcome but
also with the reasoning.”).
53 See Steven D. Smith, Lessons from Lincoln: A Comment on Levinson, 38 PEPP. L. REV. 915, 924 (2011).
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rehear a case en banc could signal disagreement with the legal reasoning of the panel decision,
and may suggest that a judge wants the entire court to have an opportunity to correct a perceived
error by the panel.54 On the other hand, a vote to rehear a case en banc may be prompted by a
judge’s desire to resolve an intracircuit conflict between panel decisions, or may be indicative of
the judge’s view that the issue is of such importance as to merit consideration by the full court.55
Moreover, as one federal appellate judge noted in a dissent from a decision denying a petition for
a rehearing en banc:
Most of us vote against most such petitions . . . even when we think the panel decision is
mistaken. We do so because federal courts of appeals decide cases in three judge panels.
En banc review is extraordinary, and is generally reserved for conflicting precedent within
the circuit which makes application of the law by district courts unduly difficult, and
egregious errors in important cases. 56
Consequently, a vote for or against rehearing a case en banc or on other procedural matters does
not necessarily equate to an endorsement or repudiation of a particular legal position.57
Finally, it should be noted that, despite having served on the federal appellate bench for more than
a decade, Judge Kavanaugh has said little about some areas of law because of the nature of the
D.C. Circuit’s docket and, as a consequence, it may be difficult to predict how he might rule on
certain issues if he were elevated to the Supreme Court. Due to the D.C. Circuit’s location in the
nation’s capital, and the number of statutes providing it with special or even exclusive jurisdiction
to review certain agency actions, legal commentators generally agree that the D.C. Circuit’s
docket, relative to the dockets of other circuits, contains a greater percentage of nationally
significant legal matters.58 For instance, the D.C. Circuit hears a large number of cases on
administrative59 and environmental law matters.60 In contrast, cases at the D.C. Circuit rarely, if
54 See Patricia M. Wald, The Problem with the Courts: Black-Robed Bureaucracy, or Collegiality Under Challenge?,
42 MD. L. REV. 766, 784 (1983) (noting that “[s]ome judges vote routinely for rehearings en banc on all cases with
which they disagree”).
55 See Stephen L. Wasby, Why Sit En Banc?, 63 HASTINGS L.J. 747, 763–73 (2012).
56 See United States v. Weitzenhoff, 35 F.3d 1275, 1293 (9th Cir. 1993) (Kleinfeld, J., dissenting from denial of
rehearing en banc); see also Bartlett v. Bowen, 824 F.2d 1240, 1244 (D.C. Cir. 1987) (Edwards, J., concurring in denial
of rehearing en banc) (“By declining to rehear a case, ‘we do not sit in judgment on the panel; we do not sanction the
result it reached’. . . . We decide merely that . . . review by the full court is not justified.”).
57 See Mitts v. Bagley, 626 F.3d 366, 370 (6th Cir. 2010) (Sutton, J., concurring in denial of rehearing en banc) (“No
one thinks a vote against rehearing en banc is an endorsement of a panel decision . . . .”).
58 See, e.g., Aaron Nielson, D.C. Circuit Review—Reviewed: The Second Most Important Court?, NOTICE & COMMENT
(Sept. 4, 2015), http://yalejreg.com/nc/d-c-circuit-review-reviewed-the-second-most-important-court-by-aaron-nielson/
(discussing reasons behind D.C. Circuit’s reputation as the “second most important court” after the Supreme Court).
59 See Kavanaugh, Administrative State, supra note 22, at 715 (“[T]he bread and butter of our docket[ ] is our
administrative law docket. What I mean by that is determining in a particular case whether an administrative agency,
like the EPA, the NLRB, or the FCC, exceeded statutory limits on their authority or violated a statutory prohibition on
what they can do. These are the cases that come up to our court constantly. We see very complicated administrative
records, and we adjudicate very complex statutes.”); see also Harry T. Edwards, A Conversation with Judge Harry T.
Edwards, 16 WASH. U. J.L. & POL’Y 61, 64 (2004) (“The D.C. Circuit docket largely consists of very dense
administrative law cases in appeals that often include huge records and numerous parties with their numerous briefs.”);
Eric M. Fraser et al., The Jurisdiction of the D.C. Circuit, 23 CORNELL J.L. & PUB. POL’Y 131, 152 (2013) (“The
modern D.C. Circuit hears a disproportionate share of administrative petitions and other cases involving the federal
government . . . .”).
60 See Jason J. Czarnezki, An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation, and the
Chevron Doctrine in Environmental Law, 79 U. COLO. L. REV. 767, 790 (2008) (noting that, in a data set of 347 judicial
votes cast in the federal courts of appeals from 2003 to 2005 on environmental law matters, “cases involving
environmental statute interpretation tend to occur in the D.C. Circuit”); Patricia M. Wald, Regulation at Risk: Are
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ever, involve “hot-button” social issues such as abortion, affirmative action, or the death
penalty.61 Moreover, the D.C. Circuit docket has a lower percentage of cases involving criminal
matters, prisoner petitions, or civil suits between private parties.62 As a result, this report focuses
primarily on areas of law where Judge Kavanaugh has written extensively, and notes only in
passing those areas where little can arguably be gleaned from his judicial record on account of his
participation in few, if any, decisions directly addressing those particular areas of law.
Courts Part of the Solution or Most of the Problem?, 67 S. CAL. L. REV. 621, 623, 633 (1994) (stating that the D.C.
Circuit has decided a number of significant environmental law cases).
61 See David G. Savage, Supreme Court Nominee Merrick Garland Has a Record of Restraint, Not Activism, L.A.
TIMES (Mar. 18, 2016), http://www.latimes.com/nation/la-na-garland-legal-analysis-20160318-story.html. (“[T]he D.C.
Circuit focuses more on dense regulatory questions than hot-button cultural issues.”).
62 See, e.g., Kavanaugh, Administrative State, supra note 22, at 715; John G. Roberts, Jr., What Makes the D.C. Circuit
Different? A Historical View, 92 VA. L. REV. 375, 377 (2006) (“[W]hen you look at the docket . . . you really see the
differences between the D.C. Circuit and the other courts. One-third of the D.C. Circuit appeals are from agency
decisions. That figure is less than twenty percent nationwide. About one-quarter of the D.C. Circuit’s cases are other
civil cases involving the federal government; nationwide that figure is only five percent. All told, about two-thirds of
the cases before the D.C. Circuit involve the federal government in some civil capacity, while that figure is less than
twenty-five percent nationwide.”).
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Judge Brett M. Kavanaugh: His Jurisprudence & Potential Impact on the Supreme Court
Judge Kavanaugh’s Judicial Approach, Philosophy,
and Influences
Notwithstanding the difficulty of predicting a nominee’s future behavior, three overarching (and
interrelated) considerations may inform an assessment of how a jurist is likely to approach the
role of a Supreme Court Justice. First, the nominee’s general approach to the craft of judging—a
phrase that this report uses to refer to the process of how a judge approaches key aspects of the
job, including writing legal opinions and resolving legal disputes on a multi-member court—may
be an important consideration in predicting how a jurist would behave on the High Court.63
Second, the judge’s overarching judicial philosophy, including how he evaluates legal questions
as a substantive matter, is another central concern in gauging how a nominee may perform.64
Third, it may be helpful to reflect on a nominee’s influences or judicial heroes, as those
individuals may exhibit qualities that the nominee will aspire to emulate.65
On all three fronts, there are a host of clues on how President Trump’s latest nominee to the High
Court views the proper role of a Supreme Court Justice. Indeed, Judge Kavanaugh is a wellknown jurist with a robust record, composed of both judicial opinions and non-judicial writings,
in which he has made his views on the law and the role of the judge fairly clear.66 This section
begins by discussing how the nominee has approached the craft of judging, including by
examining how he prepares for a case, his writing style, his approach to working with his
colleagues on the D.C. Circuit, and how his opinions have fared at the Supreme Court. The
section then turns to more substantive questions about Judge Kavanaugh’s judicial philosophy,
noting two key aspects that have undergirded how the nominee has resolved legal disputes in the
cases before him on the appellate bench. Finally, this section notes the jurists that Judge
Kavanaugh has identified as judicial role models, either because of their general approach to the
craft of judging or for their judicial philosophy.
The Craft of Judging
After his nomination to the Supreme Court, commentators noted Judge Kavanaugh’s “reputation
on both sides of the aisle as a solid and careful judge,”67 highlighting his diligence throughout the
process of authoring opinions for the D.C. Circuit.68 For instance, according to Time Magazine,
the nominee requires his law clerks to create, even for routine cases, “thick black binders” “filled
with memos and briefs . . . [and] every law-review article” that has been written on the relevant
topic, resulting in “binders stack[ing] up in the kitchenette in [Judge] Kavanaugh’s chambers.”69
In this vein, Judge Kavanaugh’s colleague, Judge Laurence Silberman, called the nominee “one
of the most serious judges” he “ever encountered.”70 Echoing these comments are anonymous
evaluations in the Almanac of the Federal Judiciary from attorneys who practiced in front of the
nominee, describing Judge Kavanaugh as “extremely well prepared,” “careful[],” and “thorough”
in his approach.71
63 See ROBERT A. KATZMANN, COURTS AND CONGRESS 14 (1997) (suggesting for Supreme Court nominees with prior
judicial experience, Senators “can focus on the way nominees approach the craft of judging: how they identify issues,
present facts, apply precedent, address opposing arguments, and state the grounds for decision”); LINDA GREENHOUSE,
THE U.S. SUPREME COURT: A VERY SHORT INTRODUCTION 28–29 (2012) (observing that a “judicial record that indicates
how a potential nominee approaches the craft of judging” can provide insights into how a nominee may approach the
role of Supreme Court Justice).
64 See CHRISTOPHER L. EISGRUBER, THE NEXT JUSTICE: REPAIRING THE SUPREME COURT APPOINTMENTS PROCESS 98
(2007) (declaring “[j]udicial philosophy” to be the “Holy Grail of Senate confirmation hearings”).
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Judge Kavanaugh’s Writing Style. On a technical level, Judge Kavanaugh’s writing has been
widely praised for its clarity, including by the President, who described the nominee as “a
brilliant jurist with a clear and effective writing style.”72 And D.C. Circuit practitioners have
likewise described Judge Kavanaugh’s writing as “well reasoned,” “thorough and clear,” and
“meticulous.”73 As one commentator remarked, Judge Kavanaugh has “made a name for himself
on the D.C. Circuit with clear, concise writing.”74 It has also been observed that Judge Kavanaugh
employs a number of mechanical techniques in crafting his judicial opinions, “includ[ing] strong
lead-in sentences, lists, summaries, pointed questions, informal expressions and lots of
repetition.”75 Such techniques are evident throughout his written opinions wherein the nominee
frequently employs bulleted lists,76 mathematical expressions and logical sequences77—quite
unusual in judicial writing—and regularly parses out the various components of his analysis
through the use of introductory ordinals78 (i.e., first, second, third). Judge Kavanaugh also
65
See Richard Wolf, Supreme Court Brett Kavanaugh Likes Conservative, and Some Liberal, Justices and Judges,
USA TODAY (July 13, 2018), https://www.usatoday.com/story/news/politics/2018/07/13/supreme-court-pick-brettkavanaugh-conservative-liberal-friends-mentor/780256002/ (noting, with respect to Judge Kavanaugh, that “you can
tell a lot about” the nominee based on his judicial friends and mentors); see also 2006 Confirmation Hearing, supra
note 27, at 23–24 (identifying the jurists who have served as “role models” to the nominee).
66 Nielson, supra note 28 (describing Judge Kavanaugh as a “very significant figure” on the D.C. Circuit).
67 Brian Bennett, How Brett Kavanaugh Could Change the Supreme Court—and America, TIME MAG., July 23, 2018,
at 22; Jack Goldsmith, Kavanaugh Will Right the Course of the Court, TIME MAG., July 23, 2018, at 25 (“Kavanaugh’s
hundreds of judicial opinions show his commitment to careful, honest, detached interpretation of the Constitution and
laws of the United States.”).
68 Bennett, supra note 67, at 23 (“On the [D.C. Circuit], Kavanaugh developed a reputation as a diligent judge who
often combed through dozens of drafts for even routine opinions . . . .”).
69 Id.
70 Id. (quoting Judge Silberman).
71 See Brett M. Kavanaugh, 2 ALMANAC OF THE FED. JUDICIARY, 2018 WL 3222137, at *4 [hereinafter ALMANAC] (“He
is extremely well prepared. . . . He asks very hard questions; he understands the issues fully . . . [and] he thinks things
through very carefully.”).
72 President Donald J. Trump, Remarks at Supreme Court Nomination Ceremony (July 9, 2018) (transcript available at
http://www.cq.com/doc/newsmakertranscripts-5353814?0).
73 See ALMANAC supra note 71, at *4.
74 Jacqueline Bell, ‘Not a Complicated Case’: Kavanaugh’s Straightforward Style, LAW360 (July 10, 2018),
https://www.law360.com/articles/1061755; see also id. (observing that “legal writing experts agree: Whatever you
think of Judge Kavanaugh’s judicial philosophy, this judge can write”).
75 Id.
76 See, e.g., PHH Corp. v. CFPB, 881 F.3d 75, 177–78, 179–81 (D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting);
U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 420 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of rehearing en
banc); White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222, 1261 (D.C. Cir. 2014) (Kavanaugh, J., concurring in
part and dissenting in part); United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013).
77 See, e.g., Priests for Life v. HHS, 808 F.3d 1, 17 (D.C. Cir. 2015) (Kavanaugh, J., dissenting from denial of rehearing
en banc) (“In most religious liberty cases, the Government has said in essence: ‘Do X or suffer a penalty.’ The religious
objector responds that X violates his or her religious beliefs. . . . Here, the situation is only slightly more complicated.
The Government has said in essence: ‘Do X or Y or suffer a penalty.’ X is provide contraceptive coverage. Y is submit
the form.”); Seven-Sky v. Holder, 661 F.3d 1, 31 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) (“But as we learn in
logic class, when A=B and B=C, then A=C.”), abrogated by Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519
(2012); see also Kavanaugh, Role of the Judiciary, supra note 24, at 5 (“I tend to be a judge who finds clarity more
readily than some of my colleagues—perhaps a little less readily than a couple. I probably apply something
approaching a 65/35 or 60/40 rule. In other words, if it is 60/40 clear, it is not ambiguous, and I do not resort to the
canons. I think a few of my colleagues and other judges around the country apply more of, say, a 90/10 rule, at least in
certain cases. Only if the proffered interpretation is at least 90/10 clear will they call it clear.”).
78 See, e.g., PHH Corp., 881 F.3d at 166–68 (Kavanaugh, J., dissenting); Garza v. Hargan, 874 F.3d 735, 753 (D.C. Cir.
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seemingly attempts to enhance the accessibility of his opinions through the occasional witticism
or colloquialism.79 For instance, in one dissent, he equated the majority’s decision to grant a writ
of mandamus requiring a district court to enter a temporary stay to using a “chainsaw to carve
your holiday turkey.”80
On a more substantive level, the nominee frequently includes an extensive discussion on the
background and history of a given issue or topic, particularly in his dissenting opinions.81
Throughout his judicial and non-judicial writings, moreover, Judge Kavanaugh relies heavily on
academic scholarship, citing law review articles, treatises, and other materials,82 perhaps
reflective of the depth of research for which the nominee is renowned.83 The nominee has
commented: “I love looking at treatises, law review articles. The more I can read about how we
got in this statute to where we are, in this constitutional provision and how it’s been applied. So
academic writing does matter to me.”84 In a similar vein, he has advised his fellow jurists:
[T]o be a good judge . . . we must keep learning. We do not know it all. . . . We have to
constantly learn. We should draw from the law reviews and the treatises that professors
2017) (en banc) (Kavanaugh, J., dissenting), cert. granted, judgment vacated sub nom. Azar v. Garza, 138 S. Ct. 1790
(2018); U.S. Telecom Ass’n, 855 F.3d at 417–18 (Kavanaugh, J., dissenting from denial of rehearing en banc); Priests
for Life, 808 F.3d at 15–16 (Kavanaugh, J., dissenting from denial of rehearing en banc); Cardoza, 713 F.3d at 660;
Seven-Sky, 661 F.3d at 32–34, 48–50 (Kavanaugh, J., dissenting); Heller v. D.C., 670 F.3d 1244, 1274 (D.C. Cir. 2011)
(Kavanaugh, J., dissenting); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd. (PCAOB), 537 F.3d 667, 698–700
(D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff’d in part, rev’d in part and remanded, 561 U.S. 477 (2010); id. at
710–11, 713–15.
79 Lorenzo v. SEC, 872 F.3d 578, 598 (D.C. Cir. 2017) (“In a Houdini-like move, the Commission rewrote the
administrative law judge’s factual findings to make those factual findings correspond to the legal conclusion that [the
defendant] was guilty and deserving of a lifetime suspension.”), cert. granted sub nom. Lorenzo v. SEC, 138 S. Ct.
2650 (2018); U.S. Telecom Ass’n, 855 F.3d at 429 (Kavanaugh, J., dissenting from denial of rehearing en banc) (“What
First Amendment case or principle supports that theory? Crickets.”); Bais Yaakov of Spring Valley v. FCC, 852 F.3d
1078, 1079 (D.C. Cir. 2017) (“Believe it or not, the fax machine is not yet extinct.”); id. at 1082 (“If you are finding the
FCC’s reasoning on this point difficult to follow, you are not alone. We do not get it either.”); Priests for Life, 808 F.3d
at 21 (Kavanaugh, J., dissenting from denial of rehearing en banc) (“To begin with, how do we determine whether the
Government has a ‘compelling interest’ in overriding a fundamental constitutional or statutory right such as RFRA’s
right to religious freedom? Good question.”); Seven-Sky, 661 F.3d at 23 (Kavanaugh, J., dissenting) (“The Tax Code is
never a walk in the park.”).
80 See Belize Soc. Dev., Ltd. v. Gov’t of Belize, 668 F.3d 724, 734 (D.C. Cir. 2012) (Kavanaugh, J., dissenting).
81 See, e.g., PHH Corp., 881 F.3d at 164–65, 167–71 (Kavanaugh, J., dissenting) (recounting the history of executive
and independent agencies before discussing the governance of the CFPB); Heller, 670 F.3d at 1287–88 (Kavanaugh, J.,
dissenting) (recounting the history of semi-automatic rifles in the United States); Free Enter. Fund, 537 F.3d at 687–97
(“discuss[ing] the text and original understanding [of Article II and the Appointments Clause] at some length”).
82 See, e.g., PHH Corp., 881 F.3d at 178 (Kavanaugh, J., dissenting) (quoting a number of law review articles to
support his assertion that there is a “deeply rooted tradition” that independent agencies are headed by multiple
commissioners or board members); U.S. Telecom Ass’n, 855 F.3d at 421–22 (Kavanaugh, J., dissenting from denial of
rehearing en banc) (quoting a law review article by Stephen Breyer on administrative law and another by Abbe R.
Gluck and Lisa Schultz Bressman on statutory interpretation); Priests for Life, 808 F.3d at 23 (dissenting from denial of
rehearing en banc) (quoting Eugene Volokh on the First Amendment); Vann v. Dep’t of Interior, 701 F.3d 927, 929
(D.C. Cir. 2012) (quoting Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane on federal practice and
procedure); Heller, 670 F.3d at 1273 (Kavanaugh, J., dissenting) (quoting Eugene Volokh and Joseph Blocher on the
Second Amendment); id. at 1281 (quoting a number of law review articles, including by Mario L. Barnes, Erwin
Chemerinsky, Alan Brownstein, Stephen A. Siegel, and Darrell A.H. Miller, in support of the proposition that the
application of different levels of scrutiny in individual rights cases amounts to using balancing tests); Free Enter.
Fund., 537 F.3d at 690, 692 (citing Akhil Reed Amar and Saikrishna Prakash on Article II); id. at 697 (citing Donna M.
Nagy and Peter L. Strauss on separation-of-powers issues); id. at 713 (quoting Laurence H. Tribe on Article II).
83 See Bennett, supra note 67, at 23.
84 Kavanaugh, Two Challenges, supra note 14, at 1908.
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have worked on for years to study a problem that we may have a couple of days to focus
on. We should study the briefs and precedents carefully and challenge our instincts or prior
inclinations. We are not the font of all wisdom.85
Working on a Multi-member Court. Given Judge Kavanaugh’s industrious approach toward
legal research and writing, it may be unsurprising that the nominee has been incredibly prolific
both on and off the bench,86 perhaps providing one indication of the quality of the nominee’s
work.87 With regard to judicial opinion writing, the nominee frequently writes separately to
express his particular views on the law, authoring more separate opinions than any of his
colleagues on the D.C. Circuit during the 12 years he served on the appellate bench.88 Moreover,
as Table A-1 indicates, during the nominee’s tenure on the D.C. Circuit, Judge Kavanaugh also
authored separate opinions at a greater rate than his colleagues who served as active judges on
that court during that entire time period.89
While a judge’s rate of concurrence or dissent in the abstract may reveal very little about the
judge’s ideological approach to a particular area of law,90 Judge Kavanaugh’s tendency to write
separately is somewhat probative in understanding his broad views on judging. As a general
matter, some legal observers characterize a judge who tends to write separately as being more
concerned with “getting the law right” than with countervailing interests that might otherwise
lead a judge to join fully the opinion for the court.91 In a 2016 speech, Judge Kavanaugh noted
85 Kavanaugh, Judge As Umpire, supra note 24, at 689.
86 See CRS Legal Sidebar LSB10170, Brett M. Kavanaugh: Selected Primary Material, by Julia Taylor, Keri B.
Stophel, and Eva M. Tarnay (noting the nominee has authored more than three hundred opinions during his judicial
career, as well as dozens of other writings).
87 Stephen J. Choi et al., Judicial Evaluations and Information Forcing: Ranking State High Courts and Their Judges,
58 DUKE L.J. 1313, 1320 (2009) (“All else being equal, a judge who publishes more opinions is better than a judge who
publishes fewer opinions.”); but see Daniel A. Farber, Supreme Court Selection and Measures of Past Judicial
Performance, 32 FLA. ST. U.L. REV. 1175, 1178 (2005) (“[P]roductivity may measure good judicial traits such as effort
or writing ability or bad judicial traits such as self-centeredness or sloppy treatment of facts.”).
88 See Table A-1.
89 Id.
90 See Eugene Kiely, Fact Check: Gorsuch’s “Mainstream” Measurement, FACTCHECK.ORG (Apr. 7, 2017),
https://www.factcheck.org/2017/04/gorsuchs-mainstream-measurement/ (noting similarities between the dissent rates
of Justices Alito, Sotomayor, and Gorsuch in concluding that “[a] circuit court judge’s overall dissent rate isn’t useful
in determining a nominee’s ideology”); cf. CROSS, supra note 45, at 174 (noting that the addition of a more
ideologically driven judge to a circuit court panel increases the likelihood that that judge “wield[s] more influence on
the ideologically opposed panel member”).
91 See Frank B. Cross, Collegial Ideology in the Courts, 103 NW. U.L. REV. 1399, 1399–1400 (2009) (“Collegiality and
ideology inevitably conflict. Given the range of ideological preferences and political ‘hot button’ issues facing courts
today, one would expect judges to disagree about the resolution of certain legal issues. Because such disagreement puts
collegiality and individuality in conflict, any model of judicial decisionmaking must account for the interaction of these
potentially opposing factors.”); see generally Lee Epstein, William M. Landes, & Richard A. Posner, Why (and When)
Judges Dissent: A Theoretical and Empirical Analysis, 3 J. LEGAL ANALYSIS 101 (2011). Cf. Stephen Choi & Mitu
Gulati, A Tournament of Judges?, 92 CAL. L. REV. 299, 310–13 (2004) (using a judge’s dissents and concurrences as a
proxy for how many disagreements a judge had with his or her colleagues); Corey Rayburn Yung, A Typology of
Judging Styles, 107 NW. U. L. REV. 1757, 1775 (2013) (“Two types of disagreements were incorporated in the
measurement: concurrences and dissents. In both situations, a judge presumably writes separately because she cannot
find common ground with other written opinions.”).
As one commentator has noted, while “a study of dissent alone will exclude instances of judicial disagreement,” there
may be “compelling reasons to concentrate on the frequency of dissent alone.” See Jeffrey A. Lefstin, The Measure of
the Doubt: Dissent, Indeterminacy, and Interpretation at the Federal Circuit, 58 HASTINGS L.J. 1025, 1051–52 (2007)
(“The concurring judge is not so easy to pin down: he may agree with the outcome but disagree with the reasoning
adopted by the majority; he may agree that the legal regime dictates the outcome of the case but wish to express
dissatisfaction with that legal regime; he may be engaged in preemptive exegesis of the opinion to influence future
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that, while he “love[s] the idea of courts working together” and trying to “find common ground,”
he “dissent[s] a fair amount” and that “dissent is good” for a court.92
The frequency with which Judge Kavanaugh has authored majority opinions for divided judicial
panels may also support the view that consensus is not necessarily a driving force in the
nominee’s approach to opinion writing.93 As Table A-2 demonstrates, while not as pronounced as
his own propensity to author concurring or dissenting opinions, Judge Kavanaugh’s majority
opinions have tended to draw more separate opinions (and dissents specifically) relative to the
majority opinions of his colleagues the D.C. Circuit.94
Jurists of various backgrounds have long debated the benefits and drawbacks of consensus on a
multi-member court,95 and Judge Kavanaugh himself has claimed that a judge needs to “balance”
various, competing interests when deciding whether to write separately.96 Regardless of the merits
of that debate, the fact that the nominee tends to author separate opinions and prompts others to
write separately may suggest that the nominee values independence and consistency in his
judicial approach over consensus building,97 ideals the nominee has explicitly endorsed in his
cases; he may wish to criticize (or expand) dictum in the majority opinion. Only the first of these possibilities
represents a disagreement arising from the indeterminacy of the legal regime, and disentangling them requires
subjective judgments by the researcher about the degree to which the concurring judge expresses agreement or
disagreement with the majority opinion.”); see generally Wald, supra note 50, at 1415 (“Concurrences . . . serve as
vehicles for judges to present additional arguments rejected or ignored by the majority, to preserve doubts or
reservations about the majority opinion for the future, to caution against its too-broad application, to disagree with all
or part of its reasoning. The tone of concurrences is usually calm and rational, not agitated as in a dissent—after all,
their authors agree with the result.”).
92 Brett M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., Justice Scalia and Deference, Keynote
Address at the Center for the Administrative State Public Policy Conference: Rethinking Judicial Deference: History,
Structure, and Accountability, at 36:38 (June 2, 2016), https://vimeo.com/169758593?utm_source=email&utm_
medium=vimeo-cliptranscode-201504&utm_campaign=28749 [hereinafter Kavanaugh, Justice Scalia].
93 Cf. Lee Epstein, Jeffrey A. Segal & Harold J. Spaeth, The Norm of Consensus on the U.S. Supreme Court, 45 AM. J.
POL. SCI. 362, 364–65 (2001) (arguing that Justices, driven by a norm of suppressing dissent in order to preserve
consensus, will write broad unanimous opinions).
94 See Table A-2.
95 Compare Harry T. Edwards, The Effects of Collegiality on Judicial Decision Making, 151 U. PA. L. REV. 1639,
1640–41 (2003) (“Collegiality mitigates judges’ ideological preferences and enables us to find common ground and
reach better decisions.”), and Deanell Reece Tacha, Judges on Judging: The “C” Word: On Collegiality, 56 OHIO ST.
L.J. 585, 586 (1995) (“I nevertheless believe that there is a value in collegiality that affects the quality of judicial
decisionmaking.”), with RICHARD A. POSNER, DIVERGENT PATHS: THE ACADEMY AND THE JUDICIARY, at ix–x (2016)
(criticizing the “staleness in the current judicial culture—a tendency of judges to recite propositions of doubtful
veracity just because they had been repeated before; a lack of curiosity and imagination; a lack of clarity and candor;
and a weak sense of fact”), and Antonin Scalia, Dissents, in SCALIA SPEAKS: REFLECTIONS ON LAW, FAITH, AND LIFE
WELL LIVED 274–90 (Christopher J. Scalia & Edward Whelan eds., 2017) (discussing the advantages of “separate
opinions . . . both within and without the court”).
96 Kavanaugh, Justice Scalia, supra note 92, at 37:36.
97
See William D. Popkin, A Common Law Lawyer on the Supreme Court: The Opinions of Justice Stevens, 1989 DUKE
L.J. 1087, 1089–90 (1989) (“One appropriate measure of independence is the frequency a judge submits separate
concurring and dissenting opinions. An independent judge is more likely to write separate opinions, rather than simply
join colleagues without expressing a distinct point of view.”); RICHARD A. POSNER, LEE EPSTEIN & WILLIAM M.
LANDES, THE BEHAVIOR OF FEDERAL JUDGES: A THEORETICAL AND EMPIRICAL STUDY OF RATIONAL CHOICE 256 (2013)
(noting that the aim of a dissent “is to promote one’s own legal views”); Rochelle Cooper Dreyfuss, The Federal
Circuit As an Institution: What Ought We to Expect?, 43 LOY. L.A. L. REV. 827, 835 (2010) (noting a high dissent rate
suggests a judge has “locked into a position from which he or she refuses to deviate”); but see David C. Vladeck,
Keeping Score: The Utility of Empirical Measurements in Judicial Selection, 32 FLA. ST. U.L. REV. 1415, 1440 (2005)
(“Dissents can (but not always) tell us something about independence, but only a small part of the story.”).
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non-judicial writings.98 Moreover, Judge Kavanaugh’s apparent propensity to eschew consensus
in favor of candor99 may reflect his preference for clear rules in adjudication, as discussed in more
detail below.100
There may be limits to the lessons that can be drawn from the frequency in which the nominee
writes separately from other colleagues on the bench or prompts others to write separately. The
choice to write separately is one that stems from various factors, and may simply depend on the
personality and preferences of an individual judge, or the nature of the dispute before the court.101
More broadly, while the data contained in Table A-1 and Table A-2 may indicate Judge
Kavanaugh’s willingness to depart from the views of his colleagues, legal commentators have
broadly noted his “very good reputation” for promoting collegiality on the D.C. Circuit and for
“working with people across ideological lines.”102 This reputation aligns with the nominee’s
public comments about how a judge should behave toward his colleagues. For instance, in a 2016
speech, Judge Kavanaugh described the “proper demeanor” for a judge as having empathy for
one’s colleagues, “demonstrat[ing] civility,” and not “be[ing] a jerk.”103 In his remarks during his
Supreme Court nomination ceremony, Judge Kavanaugh described the seventeen other judges he
worked with on the D.C. Circuit as “colleague[s]” and “friend[s].”104
While a judge’s propensity to write on behalf of himself or a divided panel may suggest that the
judge has idiosyncratic views on the law,105 Judge Kavanaugh’s record on appeal to the Supreme
Court appears to belie such a suggestion. As Table A-3 indicates, during the nominee’s twelve
years of service on the D.C. Circuit, the Supreme Court has reversed an opinion authored by
Judge Kavanaugh only once,106 and reversed one additional opinion in which the nominee
98 See Kavanaugh, Judge As Umpire, supra note 24, at 688 (arguing that “to be a good judge and a good umpire you
have to possess some backbone”).
99 See Scott C. Idleman, A Prudential Theory of Judicial Candor, 73 TEX. L. REV. 1307, 1388 (1995) (noting that
“candor is often forsaken in the process of amassing the votes necessary for a majority”).
100 See Kavanaugh, Two Challenges, supra note 14, at 1909 (“I believe very deeply in . . . the rule of law as a law of
rules . . . .”). Judge Kavanaugh’s experience as a law professor may also explain his tendency to write separately. See
Aaron J. Ley et al., The Mysterious Persistence of Non-Consensual Norms on the U.S. Supreme Court, 49 TULSA L.
REV. 99, 122 (2013) (“Those Justices having experience as law professors are more likely to write separate opinions
than Justices who began their careers in other professions.”); see also ALMANAC, supra note 71, at *4 (“‘Intellectually
he is a law professor . . . .’”).
101 See supra notes 90–91, 97.
102 Jess Bravin & Brent Kendall, Kavanaugh’s Collegial Nature Could Change Supreme Court’s Tenor, WALL ST. J.
(July 15, 2018), https://www.wsj.com/articles/kavanaughs-collegial-nature-could-change-supreme-courts-tenor1531687687; see also Aaron Nielson, D.C. Circuit Review—Reviewed: Justice Brett Kavanaugh? Some Preliminary
Thoughts, NOTICE & COMMENT (July 13, 2018), http://yalejreg.com/nc/d-c-circuit-review-reviewed-justice-brettkavanaugh-some-preliminary-thoughts/ (describing Judge Kavanaugh “as nice as he appears” and passing the
“collegiality” test); ALMANAC, supra note 71, at *4 (describing the nominee as “collegial”).
103 Kavanaugh, Judge As Umpire, supra note 24, at 689.
104 Brett M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., Remarks at Supreme Court Nomination
Ceremony (July 9, 2018) (transcript available at http://www.cq.com/doc/newsmakertranscripts-5353814?0) [hereinafter
Kavanaugh, Nomination Ceremony].
105 See Hunter Smith, Personal and Official Authority: Turn-of-the-Century Lawyers and the Dissenting Opinion, 24
YALE J.L. & HUMAN. 507, 510–24 (2012) (discussing the criticism of dissent “as an expression of private
idiosyncrasy”); but see supra notes 90–91 (noting that a judge’s ideology has little to do with his dissent rate).
106 See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014).
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joined.107 Relative to his colleagues,108 the dearth of scrutiny by the Supreme Court of Judge
Kavanaugh’s opinions is notable and could be a metric by which to gauge the nominee’s work.109
Perhaps more telling of the strength of the nominee’s record before the Court are several cases in
which the Supreme Court adopted110 the reasoning in Judge Kavanaugh’s opinions.111 As Table
107 See Munaf v. Geren, 553 U.S. 674 (2008).
108 For example, comparing Judge Kavanaugh to Judge Thomas B. Griffith, a colleague whose time of service on the
D.C. Circuit is nearly identical to the nominee (Judge Griffith was appointed a year earlier than Judge Kavanaugh),
Judge Griffith authored at least three opinions and joined six additional opinions that were reversed or vacated by the
Supreme Court during the years he served on the D.C. Circuit with the nominee. See United States v. Class, No. 153015, 2016 U.S. App. LEXIS 12620 (D.C. Cir. July 5, 2016) (Griffith, J., joining per curiam opinion), rev’d, 138 S. Ct.
798 (2018); Perry v. Merit Sys. Prot. Bd., 829 F.3d 760 (D.C. Cir. 2016) (Griffith, J., joining majority opinion), rev’d,
137 S. Ct. 1975 (2017); Maqaleh v. Hagel, 738 F.3d 312, 317 (D.C. Cir. 2013), cert. granted, judgment vacated sub
nom. Amanatullah v. Obama, 135 S. Ct. 1545 (2015), and cert. granted in part, judgment vacated in part sub nom. alNajar v. Carter, 135 S. Ct. 1581 (2015); EME Homer City, 696 F.3d 7 (Griffith, J., joining majority opinion authored
by Judge Kavanaugh), rev’d and remanded, 134 S. Ct. 1584 (2014); Shelby Cty. v. Holder, 679 F.3d 848 (D.C. Cir.
2012) (Griffith, J., joining majority opinion), rev’d, 133 S. Ct. 2612 (2013); Auburn Reg’l Med. Ctr. v. Sebelius, 642
F.3d 1145 (D.C. Cir. 2011) (Griffith, J.), rev’d and remanded, 568 U.S. 145 (2013); Zivotofsky v. Sec’y of State, 571
F.3d 1227, 1228 (D.C. Cir. 2009) (Griffith, J.), vacated and remanded sub nom. Zivotofsky ex rel. Zivotofsky v.
Clinton, 566 U.S. 189 (2012); Taylor v. Blakey, 490 F.3d 965, 968 (D.C. Cir. 2007) (Griffith, J., joining majority
opinion), vacated and remanded sub nom. Taylor v. Sturgell, 553 U.S. 880 (2008); Davis v. FEC, 501 F. Supp. 2d 22,
24 (D.D.C. 2007) (Griffith, J.), rev’d, 554 U.S. 724 (2008).
Comparable calculations for the time period Judge Kavanaugh served on the D.C. Circuit for other active status
colleagues are as follows: Chief Judge Merrick Garland (zero written opinions vacated or remanded by the Supreme
Court; joined four opinions that were vacated or remanded by the Supreme Court); Judge Karen L. Henderson (1, 3);
Judge Judith W. Rogers (3, 6); Judge David S. Tatel (4, 3). The methodology for these calculations is contained in
Table A-3.
109 See William M. Landes, Lawrence Lessig & Michael E. Solimine, Judicial Influence: A Citation Analysis of
Federal Courts of Appeals Judges, 27 J. LEGAL STUD. 271, 325–26 (1998) (hypothesizing that the Supreme Court
“rarely takes cases” from certain “top-ranked” federal appellate judges because these judges “get things ‘right’”); Frank
B. Cross & Stefanie Lindquist, Judging the Judges, 58 DUKE L.J. 1383, 1405 (2009) (“[The] Supreme Court selectively
reviews the most important decisions rendered by circuit courts, making it reasonable to use these important decisions
as a metric. . . . [T]o the degree that evaluation of circuit court judges is employed as a standard for Supreme Court
appointments, it seems appropriate to consider the fate of their decisions at the Supreme Court level.”); but see id. at
1405 (noting the rate of Supreme Court review may not fully gauge the quality of a federal appellate judge’s work
because “[m]any incorrect circuit court rulings may go unexamined by the Supreme Court, which is not a court of
‘error correction’”). Cf. Keith Perine, Sotomayor Poses Difficult Choice for Senate Republicans, CONG. Q. TODAY
ONLINE NEWS (May 26, 2006), http://www.cq.com/doc/news-3125545?0 (quoting Wendy E. Long, Counsel to the
Judicial Confirmation Network, arguing that the high reversal rate of then-Judge Sonia Sotomayor indicated that she
was a “liberal activist”); but see Guy-Uriel Charles et al., Sonia Sotomayor and the Construction of Merit, 61 EMORY
L.J. 801, 811 (2012) (arguing that “the rate at which the Supreme Court reverses a judge” is a poor metric to gauge
judicial activism).
110 While legal commentators have agreed that the Supreme Court has “adopted” positions taken by Judge Kavanaugh
in the lower courts on a number of occasions, discrepancies exist as to the precise number. Compare David Lat, The
Supreme Court Sweepstakes: The Case for Judge Kavanaugh, ABOVE THE LAW (July 3, 2018, 9:59 AM),
https://abovethelaw.com/2018/07/the-supreme-court-sweepstakes-the-latest-state-of-play-and-the-case-for-judgekavanaugh/ (“By my count, Judge Kavanaugh’s opinions have been adopted by the justices 11 times . . . .”), and Matt
Schlapp, With Brett Kavanaugh, America Will Have a Bold, Brilliant Supreme Court Justice, THE HILL (July 5, 2018,
7:00 AM), http://thehill.com/opinion/judiciary/395524-with-brett-kavanaugh-america-will-have-a-bold-brilliantsupreme-court (“[D]uring the past decade, the Supreme Court has adopted Kavanaugh’s position an astonishing 11
times.”), with Scott Shane, et al., Influential Judge, Loyal Friend, Conservative Warrior—and D.C. Insider, N.Y. TIMES
(July 14, 2018), https://www.nytimes.com/2018/07/14/us/politics/judge-brett-kavanaugh.html (“His record in the
Supreme Court has been exceptional, with the justices adopting positions advanced in his opinions 13 times.”), and
Carrie Severino, 8 Things You Didn’t Know About Brett Kavanaugh, NAT’L REV. (July 18, 2018, 12:00 PM),
https://www.nationalreview.com/bench-memos/8-things-you-didnt-know-about-brett-kavanaugh/ (“On at least 13
occasions, the Supreme Court has adopted positions that Judge Kavanaugh previously took in his opinions.”).
111 See Cross & Lindquist, supra note 109, at 1402–05 (discussing why the “success of judges’ opinions before the
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A-3 demonstrates, the Supreme Court has reversed a number of judgments from which the
nominee dissented in the lower court. In at least five of these cases, the nominee’s reasoning was
adopted, at least in part, by the Supreme Court.112 Beyond the cases in which the Court directly
reviewed a judgment in which Judge Kavanaugh authored a substantive opinion, in at least five
other cases, the Supreme Court adopted, at least in part, reasoning from an earlier opinion of the
nominee in a separate case (i.e., not the lower court opinion under review by the Supreme
Court).113
More broadly, the Supreme Court has cited Judge Kavanaugh’s opinions more frequently than it
has cited other judges. As noted in Table A-4, the Supreme Court has cited the nominee’s
separate opinions (i.e., dissents and concurrences), either in a majority or an individual Justice’s
separate opinion, eight times during the nominee’s tenure on the D.C. Circuit. As Table A-5
indicates, no other D.C. Circuit judge who served on active status for Judge Kavanaugh’s entire
tenure on that court was cited by the Supreme Court as much during this same time period. And,
as Table A-6 demonstrates, the Supreme Court cited only one other federal appellate judge who
served on active duty during Judge Kavanaugh’s entire tenure on the D.C. Circuit—Judge Jeffrey
Sutton of the Sixth Circuit—more frequently than the nominee.114
While there may be limits as to what can reasonably be discerned by the sheer number of times
the Supreme Court cites a particular jurist’s separate opinions,115 these quantitative data suggest
Supreme Court . . . is a legitimate factor to be considered” when evaluating circuit court judges).
112 See, e.g., District of Columbia v. Wesby, 138 S. Ct. 577 (2018); Michigan v. EPA, 135 S. Ct. 2699 (2015); Util. Air
Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014); United States v. Jones, 565 U.S. 400 (2012); Free Enter. Fund v.
PCAOB, 561 U.S. 477 (2010).
113 See Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387 n.4 (2014) (adopting the logic of
Grocery Manufacturers Ass’n v. EPA, 693 F.3d 169, 180–92 (D.C. Cir. 2012) (Kavanaugh, J., dissenting)); Lagos v.
United States, 138 S. Ct. 1684 (2018) (interpreting the Mandatory Victims Restitution Act in a manner largely
consistent with Judge Kavanaugh’s majority opinion in United States v. Papagno, 639 F.3d 1093 (D.C. Cir. 2011));
Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018) (agreeing with Judge Kavanaugh’s partial dissent in Doe v. Exxon
Mobil Corp., 654 F.3d 11, 73 (D.C. Cir. 2011), maintaining that the Alien Tort Statute did not apply to claims against
foreign corporations); Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) (agreeing with Judge Kavanaugh’s
partial dissent in Doe v. Exxon Mobil Corp., 654 F.3d 11, 72 (D.C. Cir. 2011) (Kavanaugh, J., dissenting in part), that
the presumption against the extraterritorial application of federal law applies to the Alien Tort Statute); Zivotofsky ex
rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (concluding, as Judge Kavanaugh concluded in his concurring
opinion in El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836, 856–57 (D.C. Cir. 2010)
(Kavanaugh, J., concurring), that the political question doctrine generally does not prevent courts from reviewing the
constitutionality of federal statutes).
There have been at least two cases in which the Supreme Court resolved a circuit split in a manner that abrogated an
earlier opinion authored by Judge Kavanaugh. For instance, in Kokesh v. SEC, 137 S. Ct. 1635 (2017), the Supreme
Court abrogated the nominee’s earlier opinion in Riordan v. SEC, 627 F.3d 1230 (D.C. Cir. 2010) (Kavanaugh, J.). See
also, e.g., Pirelli Armstrong Tire Corp. Retiree Med. Benefits Tr. ex rel. Fed Nat’l Mortg. Ass’n v. Raines, 534 F.3d
779 (D.C. Cir. 2008) (Kavanaugh, J.), abrogated by Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553 (2017).
114 To ensure consistency, the searches for purposes of Table A-5 and Table A-6 were limited to majority opinions
written by judges who were on active status as circuit judges during the entire period in which Judge Kavanaugh
served, from the date after he assumed office as a Circuit Judge (May 31, 2006) through the date of his nomination to
the Supreme Court (July 9, 2018). As a consequence, judges who joined the bench after May 31, 2006 are excluded
from the search, as were judges who retired from active status before July 9, 2018. To ensure a somewhat consistent
comparison, Table A-5 and Table A-6 list only citations to opinions written by the appellate judge between the
relevant timeframe. As a result, if a Supreme Court opinion is written in the operative time period, but cites to an
opinion written before May 31, 2006, that citation is not included in either table.
115 See Farber, supra note 87, at 1191 n.53 (noting the “problem” with a 2004 study valuating lower court judges by
number of citations by the Supreme Court “is that the numbers are small, ranging from 0 to 16,” and therefore there
was a risk that “the numbers could represent mostly random variation”); cf. Robert Anderson IV, Distinguishing
Judges: An Empirical Ranking of Judicial Quality in the United States Courts of Appeals, 76 MO. L. REV. 315, 324
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that the nominee is an influential lower court judge, and one the Justices on the Supreme Court
hold in some esteem.116 This assessment also finds support in qualitative assessments of Judge
Kavanaugh by legal commentators, who have described the nominee as one who approaches the
craft of judging with “serious[ness]” and “commands wide and deep respect among scholars,
lawyers and jurists.”117
Judicial Philosophy
Turning to the question of judicial philosophy,118 while commentators have described Judge
Kavanaugh’s interpretative approach in various ways—including as “conservative”119 or
“pragmatic”120—the nominee’s own writings have been fairly clear as to his judicial approach.
Perhaps the best insights into Judge Kavanaugh’s approach toward judging come from a speech
he delivered in 2017 at Notre Dame Law School. Specifically, in themes that pervade both his
judicial opinions and his non-judicial writing, Judge Kavanaugh focused on two central visions
for adjudication in which he “believe[s] very deeply”: (1) the “rule of law as a law of rules” and
(2) the role of the judge as “umpire.”121
The Rule of Law as a Law of Rules. Judge Kavanaugh’s first vision for judging suggests that
the nominee embraces a more formalist view of the law, favoring clarity to flexibility when
rendering legal opinions. The phrase “rule of law as a law of rules” itself references Justice
Antonin Scalia’s famous speech from 1989 in which he argued for a more formalist approach that
embraced clear rules and principles in lieu of balancing tests that, in the view of Justice Scalia,
transformed the judge from a determiner of law to a finder of fact.122 Judge Kavanaugh has
(2010) (surveying the literature on the assessment of lower court judges based on citation counts and noting the
frequent criticism that it is “impossible to measure judicial performance with quantitative data”); Lawrence B. Solum,
A Tournament of Virtue, 32 FLA. ST. U.L. REV. 1365, 1389 (2005) (characterizing the argument “that citation rate
correlates with judicial excellence” as “somewhat obscure”).
116 See Choi & Gulati, supra note 91, at 306 (suggesting the number of times an appellate judge is “cited by the
Supreme Court” is indicative of the quality of that judge); RICHARD A. POSNER, CARDOZO: A STUDY IN REPUTATION 72
(1990) (arguing that “citation studies,” despite their imperfections, “remain an attractive tool of judicial evaluation”);
cf. Richard A. Posner, The Learned Hand Biography and the Question of Judicial Greatness, 104 YALE L.J. 511, 540
(1994) (arguing that the number of citations to Judge Learned Hand indicates he was a “great judge”).
117 See Akhil Reed Amar, A Liberal’s Case for Brett Kavanaugh, N.Y. TIMES (July 9, 2018), https://www.nytimes.com/
2018/07/09/opinion/brett-kavanaugh-supreme-court-trump.html; see also supra notes 66–71 and accompanying text.
118 In critiquing the judicial nomination process, see supra note 22, the nominee has commented that “questions
regarding general judicial philosophy can shed light on matters relevant to judicial decision making and to the Senate’s
ultimate decision without threatening judicial independence.” Kavanaugh, Separation of Powers, supra note 22, at
1467.
119 See, e.g., David G. Savage, Brett Kavanaugh, a Washington Veteran, Is Trump’s Second Pick for the Supreme
Court, L.A. TIMES (July 6, 2018), http://www.latimes.com/politics/la-na-pol-brett-kavanaugh-supreme-court20180709-story.html (“‘I predict that he would be a rock-solid conservative in the Alito-Thomas mold.’” (quoting
Justin Walker, former law clerk to Judge Kavanaugh)).
120 Domenico Montanaro, Who is Brett Kavanaugh, President Trump’s Pick for the Supreme Court?, NPR.ORG (July 9,
2018), https://www.npr.org/2018/07/09/626164904/who-is-brett-kavanaugh-president-trumps-pick-for-the-supremecourt (“[B]ased on some 300 opinions in 12 years on the federal bench, Kavanaugh is considered a pragmatic but
conservative judge, who believes in textualism and originalism.”); Edith Roberts, Potential Nominee Profile: Brett
Kavanaugh, SCOTUSBLOG (June 28, 2018, 5:48 PM), http://www.scotusblog.com/2018/06/potential-nominee-profilebrett-kavanaugh (“Perhaps because of his years of executive-branch experience, Kavanaugh generally brings a
pragmatic approach to judging, although his judicial philosophy is conservative . . . .”).
121 Kavanaugh, Two Challenges, supra note 14, at 1909 (“I believe very deeply in those visions of the rule of law as a
law of rules, and of the judge as umpire.”).
122 Antonin Scalia, Associate Justice, Supreme Court of the U.S., The Rule of Law as a Law of Rules (Feb. 14, 1989),
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embraced legal formalism in a variety of contexts. For the nominee, critical questions for the
judiciary include how “can we make the rule of law more stable, and how can we increase
confidence in judges as impartial arbiters of the rule of law”?123 The answer to these questions for
Judge Kavanaugh is to establish “stable rules of the road” for interpreting law “ahead of time,”
thereby enhancing the legitimacy of the judiciary by “prevent[ing] [courts] from allowing . . .
personal feelings about a particular issue [to] dictate” how a case is resolved.124 As a result, Judge
Kavanaugh has maintained that judicial decisionmaking that is not grounded in clear rules
“threatens to undermine the stability of the law and the neutrality (actual and perceived) of the
judiciary.”125
With respect to statutory interpretation, the nominee has criticized binaries in which the
invocation of a particular interpretive rule depends on a threshold question about whether the text
being interpreted is ambiguous or clear.126 Ambiguity is often the threshold inquiry for
determining whether a court should, for example, employ legislative history as an interpretive
aid127 or defer to an administrative agency’s legal interpretation.128 For Judge Kavanaugh,
questioning whether text is ambiguous is problematic because “there is no objective or
determinate way to figure out whether something is ambiguous.”129 Because, in Judge
Kavanaugh’s view, “judgments about clarity versus ambiguity turn on little more than a judge’s
instincts,” such an approach to interpretation threatens judicial legitimacy, as “it is hard for judges
to ensure that they are separating their policy views from what the law requires of them.”130
Instead, as discussed in more detail below,131 the nominee has argued that judges should “stop”
using the “ambiguity trigger” in statutory interpretation and instead “strive to find the best
reading of the statute” based on the text, context, and established rules of construction.132
in 56 U. CHI. L. REV. 1175 (Fall 1989).
123 Brett M. Kavanaugh, One Government, Three Branches, Five Controversies: Separation of Powers Under
Presidents Bush and Obama, MARQ. LAW., Fall 2016, at 19 [hereinafter Kavanaugh, One Government].
124 Id.
125 See Kavanaugh, Fixing Statutory Interpretation, supra note 25, at 2143.
126 See Kavanaugh, Two Challenges, supra note 14, at 1910 (“Here’s my biggest problem. Several substantive canons
of statutory interpretation, such as constitutional avoidance, legislative history, and Chevron, depend on an initial
determination of whether the text is clear or ambiguous.”).
127 See, e.g., Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395 (1951) (Jackson, J., concurring) (“Resort
to legislative history is only justified where the face of the Act is inescapably ambiguous . . . .”).
128 See, e.g., Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (“[I]f the statute is silent or
ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a
permissible construction of the statute.”).
129 Kavanaugh, Two Challenges, supra note 14, at 1913; see also Kavanaugh, Fixing Statutory Interpretation, supra
note 25, at 2137 (“One judge will say that the statute is clear, and that should be the end of it. The other judge will
respond that the text is ambiguous, meaning that one or another canon of construction should be employed to decide the
case. Neither judge can convince the other. That’s because there is no right answer.”); Kavanaugh, Role of the
Judiciary, supra note 24, at 5 (“Here is the problem. And it is a major problem. All of these canons depend on a
problematic threshold question. Courts may resort to the canons only if the statute is not clear but rather is ambiguous.
But how do courts know when a statute is clear or ambiguous?”).
130 See Kavanaugh, Role of the Judiciary, supra note 24, at 6.
131 See discussion infra in Statutory Interpretation.
132 See Kavanaugh, Two Challenges, supra note 14, at 1912; see also Kavanaugh, Role of the Judiciary, supra note 24,
at 7, 10 (“[C]ourts should seek the best reading of the statute by interpreting the words of the statute, taking account of
the context of the whole statute, and applying the agreed-upon semantic canons. Once they have discerned the best
reading of the text in that way, they can depart from that baseline if required to do so by any of the relevant substantive
canons.”).
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Judge Kavanaugh’s criticism of modern constitutional interpretation parallels his apprehensions
about statutory interpretation, with the nominee expressing his broad concerns about “vague and
amorphous” standards employed in constitutional interpretation, which he views as “antithetical
to impartial judging.”133 One of the nominee’s primary criticisms concerns the use of tiers of
scrutiny, such as strict scrutiny or rational basis review, to evaluate whether government action is
permissible.134 Central to the nominee’s criticism of the tiers of scrutiny is their requirement that
a judge make a determination about whether a governmental interest is sufficiently “compelling”
or “important,” an inquiry that he views as lacking any objective measurement, and which puts
the judge “in the position of making judgment calls that inevitably seem rooted in policy, not
law.”135 In this vein, Judge Kavanaugh’s critique of the tiers of scrutiny echoes similar criticisms
by Justice Clarence Thomas, who observed in a 2016 dissent that the “Constitution does not
prescribe tiers of scrutiny,”136 as well as Justice Scalia, who once described the tiers of scrutiny as
adding an “element of randomness” to constitutional interpretation.137
While Judge Kavanaugh has been less specific as to how judges “should square up to the
problem” of ambiguity in constitutional interpretation,138 his dissent in Heller v. District of
Columbia (Heller II) suggests that he believes focusing on a constitutional provision’s “text,
history, and tradition” provides a more stable alternative.139 The “key threshold question” in
Heller II concerned the constitutional test that a court should “employ to assess” whether a gun
law comported with the Second Amendment.140 And while acknowledging that in its cases
interpreting the Second Amendment, “the [Supreme] Court never said something as succinct as
‘Courts should not apply strict or intermediate scrutiny but should instead look to text, history,
and tradition to define the scope of the right and assess gun bans and regulations,’” Judge
Kavanaugh concluded that the “clear message” to “take away from the Court’s holdings and
reasoning”141 is to eschew balancing tests “in favor of categoricalism—with the categories
defined by text, history, and tradition.”142
At the same time, there are limits to Judge Kavanaugh’s formalism. As the nominee has
acknowledged, “there are areas of the law that sometimes entail discretion. And it is important to
acknowledge that sometimes judges must exercise reasoned decision-making within a law that
gives judges some discretion over the decision.”143 Accordingly, Judge Kavanaugh has cautioned
against a vision of judging that could be “caricatured as being ‘every case is simply mechanical
133 See Kavanaugh, Two Challenges, supra note 14, at 1919.
134 See id. at 1915.
135 Id.
136 See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2327 (2016) (Thomas, J., dissenting).
137 See United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J., dissenting).
138 See Kavanaugh, Two Challenges, supra note 14, at 1919 (“At the moment, I do not have a solution to this concern.
Requiring judges to focus on history and tradition, as Justice Scalia suggested, might establish a much clearer strike
zone for these ‘exceptions’ cases.”).
139
Heller v. District of Columbia, 670 F.3d 1244, 1274 (D.C. Cir. 2011) (Kavanaugh, J., dissenting).
140 Id. at 1271.
141 Id.; see also id. at 1273 (“[T]he Court made no mention of strict or intermediate scrutiny when approving such laws.
Rather, the test the Court relied on—as it indicated by using terms such as ‘historical tradition’ and ‘longstanding’ and
‘historical justifications’—was one of text, history, and tradition.”).
142 Id. at 1282.
143 Kavanaugh, Judge As Umpire, supra note 24, at 692; Kavanaugh, Role of the Judiciary, supra note 24, at 5 (“To be
sure, on occasion, the relevant constitutional or statutory provision may actually require the judge to consider policy
and perform a common-law-like function. Federal Rule of Evidence 501 is a good example.”).
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and robotic for judges.’”144 To the nominee, there are certain cases where “[t]here is a body of
precedent that helps inform” a decision, but nonetheless the judge must exercise some degree of
discretion in reaching a decision.145 Judge Kavanaugh identifies a number of questions that he
believes require such discretion, including, among others: “what is ‘reasonable’ under the Fourth
Amendment?”; “[w]hat is a ‘compelling government interest’ under the Religious Freedom
Restoration Act?”; and “what are ‘unreasonable restraints of trade’ for purposes of the Sherman
Act.”146 At the same time, the nominee has contended that ambiguity in the law exists in “far
fewer places than one would think,”147 and, to the extent possible, judges should avoid “injecting”
ambiguity into the heart of interpretation.148
Judge as Umpire. The second, and closely related, pillar of Judge Kavanaugh’s judicial
philosophy—an embrace of the role of the judge as “umpire”—derives from an analogy Chief
Justice John Roberts used during his Supreme Court confirmation hearing wherein he likened a
judge’s job to that of an umpire in baseball. During that hearing, the future Chief Justice
described the umpire and judge as having “limited” roles in that a good judge, like an umpire,
does not “make the rules,” but instead “applies” them to ensure “everybody plays by the rules.”149
Judge Kavanaugh has discussed “the notion of judges as umpires” extensively150 in his nonjudicial writings, highlighting his “agree[ment] with that vision of the judiciary.”151 According to
the nominee:
The American rule of law . . . depends on neutral, impartial judges who say what the law
is, not what the law should be. Judges are umpires, or at least should always strive to be
umpires. In a perfect world, at least as I envision it, the outcomes of cases would not often
vary based solely on the backgrounds, political affiliations, or policy views of judges.152
In this vein, Judge Kavanaugh has defined “a neutral, impartial judiciary” as one “that decides
cases based on settled principles without regard to policy preferences or political allegiances or
which party is on which side in a particular case.”153 This vision of a neutral, impartial judiciary is
144 Kavanaugh, Judge As Umpire, supra note 24, at 692.
145 Id.
146 Id. (“[W]hat is ‘reasonable’ under the Fourth Amendment? There is a body of precedent that helps inform that, but
what’s ‘reasonable’ under the Fourth Amendment is not a question that can be answered by staring at a code or
dictionary. What is a ‘compelling government interest’ under the Religious Freedom Restoration Act? ‘Compelling
government interest’ is all the statute says—what are judges supposed to do with that? Rule 501 of the Federal Rules of
Evidence directs judges to devise evidentiary privileges in light of ‘reason and experience.’ How are we supposed to do
that? The Sherman Act prohibits ‘unreasonable restraints of trade.’ How are we supposed to figure out what are
unreasonable restraints of trade?”).
147 Kavanaugh, Our Anchor, supra note 24, at 1926–27.
148 Kavanaugh, Role of the Judiciary, supra note 24, at 7.
149 Roberts Confirmation Hearing, supra note 26, at 55.
150 See, e.g., Kavanaugh, Judge As Umpire, supra note 24, passim; Kavanaugh, Two Challenges, supra note 14, passim;
Kavanaugh, Fixing Statutory Interpretation, supra note 25, at 2119–21; Kavanaugh, Our Anchor, supra note 24, at
1927.
151 Kavanaugh, Two Challenges, supra note 14, at 1919.
152 Kavanaugh, Role of the Judiciary, supra note 24, at 4.
153 Kavanaugh, Two Challenges, supra note 14, at 1909. In his remarks during his nomination ceremony, moreover,
Judge Kavanaugh stated: “I revere the Constitution. I believe that an independent judiciary is the crown jewel of our
constitutional republic.” Kavanaugh, Nomination Ceremony, supra note 104; see also Kavanaugh, 2006 Confirmation
Hearing, supra note 27, at 45 (“In terms of the independence of the judiciary, I think that is something that is the
hallmark of our judiciary, the hallmark of our system that judges are independent from the legislative branch and
independent from the executive branch. I think that is central to my understanding of the proper judicial role.”).
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echoed throughout the nominee’s non-judicial writings and speeches,154 as well as in his written
opinions155 and during his confirmation hearing in 2006 as a nominee to the D.C. Circuit.156 For
instance, Judge Kavanaugh emphasized at that hearing his view that “the worst moments in the
Supreme Court’s history have been moments of judicial activism . . . where the Court went
outside its proper bounds . . . in interpreting clauses of the Constitution to impose its own policy
views and to supplant the proper role of the legislative branch.”157 As a result, the nominee has
highlighted his belief “in judicial restraint, recognizing the primary policymaking role of the
legislative branch in our constitutional democracy.”158
These broad statements about the role of the judge as a neutral umpire may prompt the question
as to how the nominee strives to achieve such neutrality. In accepting the nomination to the
Supreme Court, Judge Kavanaugh articulated what he viewed as a “straightforward” means to
ensure that a judge remains “independent” and “interpret[s] the law” but does “not make the law.”
Specifically, Judge Kavanaugh stated that a judge must interpret the Constitution “as written,
informed by history and tradition and precedent.”159 At a high level, this statement summarizes
the three main aspects of the nominee’s approach to ensuring that a judge remains an umpire, an
approach that emphasizes (1) the primacy of the text of the law being interpreted, (2) an
awareness of history and tradition, and (3) adherence to precedent. Each of these themes is
examined below.
Textualism. A foundational aspect of Judge Kavanaugh’s judicial philosophy is his embrace of
textualism, the doctrine that the words of a governing text are paramount to understanding the
meaning of a law.160 As discussed in more detail below,161 Judge Kavanaugh has, like Justice
Scalia, emphasized the “centrality of the words of the statute” and counseled against the use of
certain “substantive principles of interpretation”162 that, in the nominee’s view, pose risks to
154 See, e.g., Kavanaugh, Fixing Statutory Interpretation, supra note 25, at 2120 (“For me, one overarching goal is to
make judging a neutral, impartial process in all cases—not just statutory interpretation cases. Like cases should be
treated alike by judges of all ideological and philosophical stripes, regardless of the subject matter and regardless of the
identity of the parties to the case.”); id. at 2121 (describing “the neutral and impartial rule of law, and . . . the ideal and
reality of a principled, nonpartisan judiciary).
155 See, e.g., Garza v. Hargan, 874 F.3d 735, 756 (D.C. Cir. 2017) (en banc) (Kavanaugh, J., dissenting) (“As a lower
court, our job is to follow the law as it is, not as we might wish it to be.”), cert. granted, judgment vacated sub nom.
Azar v. Garza, 138 S. Ct. 1790 (2018); U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 418 (D.C. Cir. 2017) (Kavanaugh,
J., dissenting from denial of rehearing en banc) (“[T]he Supreme Court could always refine or reconsider the major
rules doctrine or its decisions in the Turner Broadcasting cases. But as a lower court, we do not possess that power.”);
Heller v. District of Columbia, 670 F.3d 1244, 1295–96 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) (“If our job were
to decree what we think is the best policy, I would carefully consider the issues through that different lens and might
well look favorably upon certain regulations of this kind. But our task is to apply the Constitution and the precedents of
the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy.”).
156 Kavanaugh, 2006 Confirmation Hearing, supra note 27, at 29 (“I absolutely believe in the idea that judges are
neutral and . . . once you put on the black robe, you’re impartial and you represent the law. . . . There’s no such thing on
the courts as a Republican judge or a Democratic judge. Once you’re on the court, all the judges are there representing
the justice system, representing the idea of justice.”).
157 Id. at 46.
158 Id. at 45.
159 Kavanaugh, Nomination Ceremony, supra note 104.
160 Textualism, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining “textualism” as the “doctrine that the words of a
governing text are of paramount concern and that what they fairly convey in their context is what the text means”).
161 See discussion infra in Statutory Interpretation.
162 Kavanaugh, Fixing Statutory Interpretation, supra note 25, at 2118.
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judges’ roles as “neutral, impartial umpires in certain statutory interpretation cases.”163 Thus,
Judge Kavanaugh has advised that “[t]he judge’s job is to interpret the law, not to make the law or
make policy. So, read the words of the statute as written.”164 In this vein, the nominee has
described his embrace of textualism as intended to promote a neutral, impartial judiciary; in his
words: “This tenet—adhere to the text—is neutral as a matter of politics and policy. The statutory
text may be pro-business or pro-labor, pro-development or pro-environment, pro-bank or proconsumer. Regardless, judges should follow clear text where it leads.”165
In addition to figuring prominently in statutory interpretation, Judge Kavanaugh’s textualist
approach extends to constitutional interpretation. The nominee has remarked that the one factor
that “matters above all in constitutional interpretation and in understanding the grand sweep of
constitutional jurisprudence . . . is the precise wording of the constitutional text. It’s not the only
factor, but it’s the anchor, the magnet, the most important factor that directs and explains much of
constitutional law . . . .”166 Accordingly, Judge Kavanaugh has instructed that judges must “[r]ead
the text of the Constitution as written . . . . Don’t make up new constitutional rights that are not in
the Constitution. Don’t shy away from enforcing constitutional rights that are in the text of the
Constitution. Changing the Constitution is for the amendment process. Changing policy within
constitutional bounds is for the legislatures.”167
Nonetheless, there are limits to Judge Kavanaugh’s embrace of textualism.168 Specifically, the
nominee has “emphasize[d] that the text is not the end-all of statutory interpretation,”169 and has
remarked that “on occasion the relevant constitutional or statutory provision may actually require
the judge to consider policy and perform a common law-like function.”170 Judge Kavanaugh
suggests there are a variety of cases “where the judicial inquiry requires determination of what is
reasonable or appropriate,” and these “are less a matter of pure interpretation than of common
law-like judging.”171 Accordingly, while the nominee’s writings demonstrate a clear subscription
to textualism and a belief that “[m]any cases come down to interpretation of the text of the
163 Id. at 2118–19.
164 Kavanaugh, Role of the Judiciary, supra note 24, at 4.
165 Kavanaugh, Fixing Statutory Interpretation, supra note 25, at 2135. Judge Kavanaugh has tied his conception of
textualism to the Constitution itself, remarking that “[t]he text of the document is not just something that we’re
supposed to look at just for interest. . . . It is binding law. It says in Article VI it’s the supreme law of the land, and it is
binding on us.” Brett M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., Remarks on a Panel
Discussion at the George Washington University Law School (Nov. 4, 2011), in A Dialogue with Federal Judges on
the Role of History in Interpretation, 80 GEO. WASH. L. REV. 1889, 1897–98 (2012) [hereinafter Kavanaugh, Role of
History].
166 Kavanaugh, Our Anchor, supra note 24, at 1908.
167 Kavanaugh, Role of the Judiciary, supra note 24, at 4.
168 See, e.g., Kavanaugh, Judge As Umpire, supra note 24, at 692 (“[T]here are areas of law where there is judicial
discretion, where it is not purely interpretive, it is not just figuring out what the meaning of a term is. And there will
probably always be some discretion in some areas in the law.”).
169 Kavanaugh, Administrative State, supra note 22, at 717.
170 Kavanaugh, Fixing Statutory Interpretation, supra note 25, at 2120.
171 Id. at 2120 n.12 (“To take one example, we should not expect all judges to agree on whether a particular kind of
search is ‘reasonable’ under the Fourth Amendment. Or what evidentiary privileges should be recognized ‘in the light
of reason and experience.’ Or whether attorney’s fees are in ‘the interest of justice.’ Or what constitutes a ‘restraint of
trade.’” (quoting U.S. CONST. amend. IV; Riley v. California, 134 S. Ct. 2473 (2014); FED. R. EVID. 501; Swidler &
Berlin v. United States, 524 U.S. 399 (1998); 15 U.S.C. §§ 2072(a), 1 (2012))).
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Constitution, a statute, a rule, or a contract,” he also seems to leave room for a recognition that
“not every case comes down to pure interpretation.”172
History and Tradition. Beyond a reliance on a law’s text to promote judicial neutrality, Judge
Kavanaugh’s judicial opinions are frequently guided by what he refers to as “history and
tradition.”173 The nominee, however, has not embraced a narrow view as to what particular
“history” and “tradition” can inform legal interpretation, including constitutional interpretation.
While some commentators have labeled Judge Kavanaugh an originalist in the Scalia tradition,174
others have observed that the nominee does not appear to “call himself an originalist, and his
opinions on the appellate court suggest that he uses less originalist analysis than Justice Thomas
or Justice Gorsuch.”175 Indeed, in a 2017 speech, while suggesting that Justice Scalia’s focus on
“history and tradition” “might” be consistent with the vision of a judge as an impartial umpire,
Judge Kavanaugh stated that he does not “[a]t the moment . . . have a solution” to his concerns
about the indeterminacy of constitutional interpretation.176
In contrast to Justice Neil M. Gorsuch, who as a judge on the Tenth Circuit openly endorsed
constitutional interpretations that relied on the Constitution’s “original public meaning,”177 Judge
Kavanaugh has not been as explicit. In perhaps the nominee’s closest embrace of originalism,
172 Kavanaugh, Judge As Umpire, supra note 24, at 692.
173 See, e.g., PHH Corp. v. CFPB, 881 F.3d 75, 179 (D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting) (“A long
line of Supreme Court precedent commands that we heed history and tradition in separation of powers cases not
resolved by the constitutional text alone.”); Am. Meat Inst. v. Dep’t of Agric., 760 F.3d 18, 31 (D.C. Cir. 2014) (en
banc) (Kavanaugh, J., concurring) (“Here, as elsewhere in First Amendment free-speech law, history and tradition are
reliable guides.”); United States v. Burwell, 690 F.3d 500, 534 (D.C. Cir. 2012) (en banc) (Kavanaugh, J., dissenting)
(describing the mens rea presumption as informed by “history and tradition”); Heller v. District of Columbia, 670 F.3d
1244, 1271 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) (describing the relevant test for “determining the scope of the
Second Amendment right” as being guided by “history and tradition”); Newdow v. Roberts, 603 F.3d 1002, 1018 (D.C.
Cir. 2010) (Kavanaugh, J., concurring) (concluding that “history and tradition” inform the interpretation of the
Establishment Clause).
174 See, e.g., Ann E. Marimow, Brett Kavanaugh, Trump’s Supreme Court Pick, Has Sided with Broad Views of
Presidential Powers, WASH. POST (July 9, 2019), https://www.washingtonpost.com/politics/courts_law/brettkavanaugh-trumps-supreme-court-pick-has-sided-with-broad-views-of-presidential-powers/2018/07/09/1618bec083a8-11e8-8553-a3ce89036c78_story.html?utm_term=.66b5b211fd60 (“On the bench, Kavanaugh is a proponent of
‘originalism,’ the practice of interpreting the Constitution and statutes by looking at the original meaning and text.”);
John Kass, How to Maintain the Republic? Originalist Justices Like Brett Kavanaugh, CHI. TRIB. (July 10, 2018),
http://www.chicagotribune.com/news/columnists/kass/ct-met-brett-kavanaugh-supreme-court-kass-20180710story.html; Schlapp, supra note 110 (“Over his 12 years on the D.C. Circuit, Judge Kavanaugh has consistently, boldly,
and fearlessly applied textualism and originalism to a striking range of legal issues.”); Sarah E. Pitlyk, Judge Brett
Kavanaugh’s Impeccable Record of Constitutional Conservatism, NAT’L REV. (July 3, 2018),
https://www.nationalreview.com/2018/07/judge-brett-kavanaughs-impeccable-record-of-constitutional-conservatism/
(“Judge Kavanaugh . . . has . . . fearlessly defended his textualist and originalist philosophy.”).
175 Jeffrey Rosen, What We Learn From Supreme Court Confirmation Hearings, WALL ST. J. (July 13, 2018),
https://www.wsj.com/articles/what-we-learn-from-supreme-court-confirmation-hearings-1531493146; see also Eric
Posner, Is Brett Kavanaugh an Originalist?, ERICPOSNER.COM (July 18, 2018), http://ericposner.com/is-brettkavanaugh-an-originalist/ (“[I]n his writings, Kavanaugh hardly mentions originalism at all. A textualist, yes. An
enthusiastic fan of Justice Scalia, yes. But also a fan of William Rehnquist, no one’s idea of an originalist.”).
176 Kavanaugh, Two Challenges, supra note 14, at 1919.
177 See, e.g., Cordova v. City of Albuquerque, 816 F.3d 645, 661 (10th Cir. 2016) (Gorsuch, J., concurring)
(maintaining that the Constitution “isn’t some inkblot on which litigants may project their hopes and dreams for a new
and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public
meaning”); United States v. Krueger, 809 F.3d 1109, 1123 (10th Cir. 2015) (Gorsuch, J., concurring) (“When
interpreting the Fourth Amendment we start by looking to its original public meaning—asking what traditional
protections against unreasonable searches and seizures were afforded by the common law at the time of the framing.”
(internal citations and quotations omitted)).
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Judge Kavanaugh contended in his dissenting opinion in Heller II that the “post-ratification
adoption or acceptance of laws that are inconsistent with the original meaning of the
constitutional text obviously cannot overcome or alter that text.”178 Notably, the dissent
continued:
The Constitution is an enduring document, and its principles were designed to, and do,
apply to modern conditions and developments. The constitutional principles do not change
(absent amendment), but the relevant principles must be faithfully applied not only to
circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern
situations that were unknown to the Constitution’s Framers. To be sure, applying
constitutional principles to novel modern conditions can be difficult and leave close
questions at the margins. But that is hardly unique to the Second Amendment. It is an
essential component of judicial decisionmaking under our enduring Constitution.179
Nonetheless, in his Heller II dissent and elsewhere, Judge Kavanaugh, when discussing history
and tradition to “inform the interpretation of a constitutional provision,” has looked to both preand post-ratification history and tradition.180 In a dissenting opinion in PHH Corp. v. CFPB, for
instance, the nominee wrote that “in separation of powers cases not resolved by the constitutional
text alone, historical practice helps define the constitutional limits on the Legislative and
Executive Branches.”181 In PHH Corp., the majority of the D.C. Circuit sitting en banc held that
the CFPB’s structure of governance was constitutional under Article II.182 Judge Kavanaugh
disagreed, canvassing the nation’s historical post-ratification experience with the structure of
independent agencies, and concluding that “the CFPB’s departure from historical practice matters
in this case because historical practice matters to separation of powers analysis.”183
More broadly, Judge Kavanaugh’s non-judicial writings might be read to suggest he elevates a
textualist approach over an originalist philosophy.184 For instance, the nominee has suggested:
When we think about the Constitution and we focus on the specific words of the
Constitution, we ought to not be seduced into thinking that it was perfect and that it remains
perfect. The Framers did not think that the Constitution was perfect. And they knew,
moreover, that it might need to be changed as times and circumstances and policy views
changed.185
178 Heller v. District of Columbia, 670 F.3d 1244, 1274 n.6 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) (emphasis in
original).
179 Id. at 1275. For more on the nominee’s views on the Second Amendment, see discussion infra in Second
Amendment.
180 Heller, 670 F.3d at 1274.; see also PHH Corp. v. CFPB, 881 F.3d 75, 179 (D.C. Cir. 2018) (en banc) (Kavanaugh,
J., dissenting) (noting “that the [Supreme] Court has treated [historical] practice as an important interpretive factor even
when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding
era” (internal citations omitted)).
181 PHH Corp., 881 F.3d at 181 (Kavanaugh, J., dissenting); see also id. at 183 (“The historical practice of structuring
independent agencies as multi-member commissions or boards is the historical practice for a reason: It reflects a deep
and abiding concern for safeguarding the individual liberty protected by the Constitution.”); id. at 187 (“When
examining the relevant history, we can see that the original design, common understanding, and consistent historical
practice of independent agencies as multi-member bodies reflect the larger values of the Constitution.”).
182 Id. at 77 (majority opinion).
183 Id. at 179 (Kavanaugh, J., dissenting).
184 See, e.g., Role of History, supra note 165, at 1912 (“[U]ltimately, one of my theses is that the words actually tell us a
lot more than we often assume, that they’re not so complicated. It’s not mystifying to actually read this and get some
meaning out of it.”); Kavanaugh, From the Bench, supra note 24, at 2.
185 Kavanaugh, From the Bench, supra note 24, at 2.
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The nominee has also cast some doubt on the reliability of some of the source materials
frequently relied upon by originalists:
[B]e careful about even The Federalist . . . That’s not the authoritative interpretation of the
words. You’ve got to be careful about some of the ratification debates. You’ve got to be
careful about different people at the Convention itself. They had different views. So when
there’s compromise, all the more reason for me to stick as close as you can to what the text
says.186
At the same time, while seemingly “not a dyed-in-the-wool originalist like Scalia,” as one
observer has put it, Judge “Kavanaugh has relied on originalist principles.”187 In several speeches,
for example, the nominee has endorsed the originalist concept of the “enduring constitution,”188
albeit in connection with an overarching textualist approach to constitutional interpretation: “For
those of us who believe that the judges are confined to interpreting and applying the Constitution
and laws as they are written and not as we might wish they were written, we . . . believe in a
Constitution that lives and endures.”189 And the notion of an enduring Constitution has figured in
Judge Kavanaugh’s written opinions for the D.C. Circuit. Beyond his dissent in Heller II, in his
dissent in Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB), for
instance, Judge Kavanaugh stressed the importance of original meaning in conjunction with a
textualist approach, asserting that “it is always important in a case of this sort to begin with the
constitutional text and the original understanding, which are essential to proper interpretation of
our enduring Constitution.”190
Precedent. Judge Kavanaugh’s vision of a neutral, impartial judiciary—composed of judges
strictly applying stable rules of law—perhaps suggests how the nominee might view the doctrine
of stare decisis191 and the role of precedent in deciding cases. During his confirmation hearing in
2006 as a nominee to the D.C. Circuit, Judge Kavanaugh stated: “I believe very much . . . in
following the Supreme Court precedent strictly and absolutely. . . . I think that is very important
for the stability of our three-level system for lower courts to faithfully follow Supreme Court
precedent . . . .”192 Indeed, in his non-judicial writings, the nominee has emphasized the
importance of stare decisis:
We operate in a system built on Supreme Court precedent. As lower court judges, we must
adhere to absolute vertical stare decisis, meaning we follow what the Supreme Court says.
186 Kavanaugh, Role of History, supra note 165, at 1912–13.
187 Roberts, supra note 120.
188 See Kavanaugh, From the Bench, supra note 24, at 3–4 (contrasting the concept of a “living constitution,” under
which “the Constitution is a living document, and the Court must ensure that the Constitution adapts to meet the
changing times,” with that of an “enduring constitution,” or the belief “in a Constitution that lives and endures,” but
“that changes to the Constitution and laws are to be made by the people through the amendment process and, where
appropriate, through the legislative process—not by the courts snatching that constitutional or legislative authority for
themselves”).
189 Id.; see also Kavanaugh, Our Anchor, supra note 24, at 1927 (“As enduring constitutionalists argue, however,
paying close attention to the precise words of the constitutional text is a mainstream and long accepted mode of
constitutional interpretation. . . . Text matters.”).
190 537 F.3d 667, 688 (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff’d in part, rev’d in part and remanded, 561 U.S.
477 (2010).
191 Stare Decisis, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining “stare decisis” as “the doctrine of precedent
under which a court must follow earlier judicial decisions when the same points arise again in litigation”).
192 Kavanaugh, 2006 Confirmation Hearing, supra note 27, at 45; see also id. at 23 (“[O]n the question of Roe v. Wade,
if confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of
the Court.”).
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And to be a good lower court judge, you must follow the Supreme Court precedent in letter
and in spirit. We should not try to wriggle out of what the Supreme Court said, or to twist
what the Supreme Court said, or to push the law in a particular direction . . . .193
That Judge Kavanaugh’s judicial philosophy incorporates adherence to precedent is also evident
in his written opinions issued in a number of high-profile cases over the last decade. Recently, in
Garza v. Hargan, for instance, the nominee dissented from the court’s en banc order in a case
involving whether an alien minor without lawful immigration status in federal custody may
obtain an abortion.194 In so doing, Judge Kavanaugh emphasized that “our job as lower court
judges is to apply the precedents and principles articulated in Supreme Court decisions to the new
situations.”195 More generally, the nominee has warned that judges should follow Supreme Court
cases both “in letter and in spirit,”196 and has stated that even where the governing precedent is
controversial or has engendered “vigorous dissents,” the job of the lower court is not “to relitigate or trim or expand Supreme Court decisions,” but to follow those decisions “as closely and
carefully and dispassionately as we can.”197 In another dissenting opinion, Judge Kavanaugh
more colorfully stated that lower courts must “follow both the words and the music of Supreme
Court opinions.”198
Notwithstanding these broad statements about the role of precedent for lower courts, it is difficult
to state with certainty how Judge Kavanaugh would apply the doctrine of stare decisis in a
particular case if he were elevated to the Supreme Court due to the unique nature of that position
relative to his current role. The nominee’s previous judicial writings were from the perspective of
a D.C. Circuit judge—one bound to follow Supreme Court precedent and able to override existing
circuit precedent only with the concurrence of a majority of the en banc court.199 Stare decisis
applies quite differently, however, when the Supreme Court reconsiders its own cases.200
Nonetheless, Judge Kavanaugh’s writings give some clues as to how he might approach the
question of whether to overturn existing precedent. In one speech, the nominee stated that
horizontal stare decisis—that is, the precedential effect that a court’s own decisions have on that
same court—”has some flexibility.”201 In another talk, Judge Kavanaugh doubted whether
193 Kavanaugh, Judge As Umpire, supra note 24, at 686.
194 874 F.3d 735 (D.C. Cir. 2017) (en banc), cert. granted, judgment vacated sub nom. Azar v. Garza, 138 S. Ct. 1790
(2018). For more on the nominee’s views on the constitutionality of abortion, see discussion infra in Substantive Due
Process and Fundamental Rights.
195 Garza, 874 F.3d at 756 (Kavanaugh, J., dissenting) (“As a lower court, our job is to follow the law as it is, not as we
might wish it to be.”).
196 Kavanaugh, Judge As Umpire, supra note 24, at 686.
197 Priests for Life v. HHS, 808 F.3d 1, 14 (D.C. Cir. 2015) (Kavanaugh, J., dissenting from denial of rehearing en
banc).
198 United States v. Martinez-Cruz, 736 F.3d 999, 1006 (D.C. Cir. 2013) (Kavanaugh, J., dissenting).
199 See, e.g., Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 876 (D.C. Cir. 1992) (en
banc).
200 Horizontal stare decisis binds the issuing court to its “own prior decisions,” while “[v]ertical stare decisis requires
that courts of lower rank follow decisions of higher courts.” Alaska Pub. Interest Research Grp. v. Alaska, 167 P.3d 27,
43 (Alaska 2007). Because the Supreme Court is the highest court in the United States, the Justices are bound only by
horizontal stare decisis, and the Court has articulated five general principles governing horizontal stare decisis. See
Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2478–79 (2018) (identifying as factors
to consider when determining whether to overturn precedent (1) the quality of a prior ruling’s reasoning, (2) the
workability of the rule the precedent established, (3) its consistency with other related decisions, (4) developments
since the decision was handed down, and (5) reliance on the decision).
201 Kavanaugh, Judge As Umpire, supra note 24, at 687 (2016) (emphasis added).
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existing Supreme Court case law on stare decisis provided a principled, restraining test for when
to overrule prior cases.202 Responding to a question as to whether there is a single standard a court
could use to determine whether to overturn a prior decision, the nominee noted that it is “hard to
have a set formula for overruling that’s going to work in all cases.”203 Judge Kavanaugh
described the Supreme Court’s existing test as one that requires the Court to overrule when a case
is “really wrong and has really significant practical effects, and there hasn’t been reliance
interests of the kind you would have with a property or contract decision.”204 Nevertheless, the
nominee criticized this test, remarking that it does “not really” “bind[ ],” or “tell[ ] you in
advance with Justices of different stripes when” to overrule a case.205 In line with his general
judicial philosophy that tends to emphasize stability and clear rules from the judiciary,206 Judge
Kavanaugh expressed concern that the current formula does not give “much predictability or
guidance.”207
While the nominee has not further elaborated on his overarching theory for when to diverge from
precedent, his general judicial philosophy, as noted, is based in part on the theory that judges
should set clear rules in advance and then follow those rules.208 As Judge Kavanaugh has noted,
“[e]ven in those cases where there is discretion . . . [and] judges are assigned what may be
described as common-law-like authority,” they must still adhere to certain principles: “we try to
follow precedent and have a stable body of precedent”; “we try to write our decisions in reasoned
and clear ways”; “we try to be consistent in how we go about deciding like cases alike”; and “we
do so candidly.”209 This emphasis on stability and predictability may suggest a reluctance to
overturn well-established precedent.210
At the same time, Judge Kavanaugh’s opinions reveal that he is less likely to follow Supreme
Court case law or prior D.C. Circuit decisions when he believes a prior case has been
significantly undermined by subsequent factual developments211 or is inconsistent with prevailing
doctrine.212 For example, in United States v. Burwell, Judge Kavanaugh argued in dissent that the
D.C. Circuit should not have followed its prior opinion that had “been undermined” by a
202 Brett M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., The Court: Power, Policy, and Self-
Government (interview at the American Enterprise Institute), at 49:04 (Mar. 31, 2016), http://www.aei.org/events/thecourt-power-policy-and-self-government/ [hereinafter Kavanaugh, AEI Interview].
203 Id. at 48:56.
204 Id. at 49:04; see also Kavanaugh, Justice Scalia, supra note 92, at 14:01 (noting that for a decision to be overturned
it must not only be wrong but also have “serious” “negative” consequences).
205 Kavanaugh, AEI Interview, supra note 202, at 49:04 (“To speak in common parlance, when it’s really wrong and
has really significant practical effects, and there hasn’t been reliance interests of the kind you would have with a
property or contract decision, that seems to be a descriptive of when the Court will overrule something—but is that a
formula that binds? Is that a formula that tells you in advance with justices of different stripes when to do it and when
to not? Not really.”).
206 See supra notes 123–25 and accompanying text.
207 Kavanaugh, AEI Interview, supra note 202, at 50:11.
208
Kavanaugh, Judge As Umpire, supra note 24, at 686 (“[T]o be a good judge and a good umpire, you also have to
follow the established rules and the established principles. . . . Following established rules includes stare decisis: we
follow the cases that have been decided.”).
209 Id. at 692.
210 See, e.g., Kavanaugh, Two Challenges, supra note 14, at 1909 (emphasizing the importance of predictable results,
and agreeing with Justice Scalia’s characterization of “the rule of law as a law of rules”).
211 See Agape Church, Inc. v. FCC, 738 F.3d 397, 414–15 (D.C. Cir. 2013) (Kavanaugh, J., concurring).
212 See United States v. Burwell, 690 F.3d 500, 543 (D.C. Cir. 2012) (en banc) (Kavanaugh, J., dissenting); In re Aiken
Cty., 645 F.3d 428, 441–42 (D.C. Cir. 2011) (Kavanaugh, J., concurring).
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subsequent Supreme Court decision.213 And, as discussed in more detail below,214 in a series of
cases215 the nominee has questioned the continuing viability of the Supreme Court’s decision in
Turner Broadcasting System, Inc. v. FCC,216 most recently and most directly in a concurring
opinion in Agape Church, Inc. v. FCC.217 In Agape Church, Judge Kavanaugh maintained that the
factual foundation for Turner—the monopolistic nature of the cable television market—had been
altered since the case was written in 1994, and, therefore, “the constitutional foundation . . .
collapsed with it.”218 The nominee suggested that future courts reviewing the constitutionality of
the relevant provisions could reach a different result than the Supreme Court did in Turner,
stating that stare decisis required courts to follow only the “constitutional principles that
undergird Turner,” and that applying those principles to the modern market would “lead[] to an
entirely different result.”219 As a consequence, Judge Kavanaugh’s Agape Church concurrence
seems to express a belief that in certain circumstances, a court may depart from a prior decision’s
result so long as it remains true to its broader, underlying principles.220
Finally, it should be noted that the nominee has in several opinions criticized two Supreme Court
decisions that declined to strike down statutes restricting the President’s power to remove certain
executive officers: Humphrey’s Executor v. United States221 and Morrison v. Olson.222 While
judges may be reluctant or unable to overrule prior cases, they frequently distinguish precedent
with which they disagree from the disputes before them.223 As discussed below,224 Judge
Kavanaugh has authored a number of opinions arguing that the courts should construe the scope
of Humphrey’s Executor and Morrison narrowly.225 Perhaps his most pointed remarks on
Morrison came at an event in 2016 at the American Enterprise Institute: when asked whether he
213 Burwell, 690 F.3d at 543 (Kavanaugh, J., dissenting).
214 See discussion infra in Freedom of Speech.
215 Agape Church, 738 F.3d at 414–15 (Kavanaugh, J., concurring); Comcast Cable Communc’ns, LLC v. FCC, 717
F.3d 982, 992–94 (D.C. Cir. 2013) (Kavanaugh, J., concurring); Cablevision Sys. Corp. v. FCC, 597 F.3d 1306, 1315
(D.C. Cir. 2010) (Kavanaugh, J., dissenting).
216 512 U.S. 622 (1994).
217 738 F.3d at 414–15 (Kavanaugh, J., concurring).
218 Id. See also id. at 415 (“In short, as a matter of constitutional law and technological reality, the 1992 Cable Act’s
various program carriage and non-discrimination regimes rest on a hollowed-out foundation.”).
219 Id. In his view, “[a] contrary approach to precedent . . . would reflect a mindless perversion of stare decisis, not a
faithful application of stare decisis.” Id. at 414.
220 See id. at 415.
221 295 U.S. 602 (1935).
222 487 U.S. 654 (1988).
223 See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in
Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 7–8 (Amy
Gutmann ed., 1997).
224 See discussion infra in Separation of Powers.
225 In re Aiken Cty., 645 F.3d 428, 446 (D.C. Cir. 2011) (Kavanaugh, J., concurring) (noting that “Humphrey’s
Executor is an entrenched Supreme Court precedent, protected by stare decisis,” but suggesting that the case might, in
the future, be limited by doctrines that seek to “enhance the accountability and effectiveness of independent agencies in
a manner consistent with Humphrey’s Executor.”); Free Enter. Fund v. PCAOB, 537 F.3d 667, 696 (D.C. Cir. 2008)
(Kavanaugh, J., dissenting) (stating that Humphrey’s Executor and Morrison “have long been criticized by many as
inconsistent with the text of the Constitution, with the understanding of the text that largely prevailed from 1789
through 1935, and with prior precedents”); see also PHH Corp. v. CFPB, 881 F.3d 75, 176 n.3 (D.C. Cir. 2018) (en
banc) (Kavanaugh, J., dissenting) (arguing “that the independent counsel experiment ended with nearly universal
consensus that the experiment had been a mistake and that Justice Scalia had been right back in 1988 [in his dissenting
opinion in Morrison] to view the independent counsel system as an unwise and unconstitutional departure from
historical practice and a serious threat to individual liberty”).
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would give an example of “a case that deserves to be overturned,” the nominee volunteered
“Morrison v. Olson,”226 stating that the case had been “effectively overruled, but [he] would put
the final nail in.”227 While this comment was made in off-the-cuff remarks, when viewed together
with his judicial opinions, it suggests that Judge Kavanaugh disagrees with the reasoning of
Morrison, and may consider the case sufficiently “wrong”228 that it should be reconsidered.229
Judicial Influences
Finally, it may be instructive to note some of Judge Kavanaugh’s judicial influences or
contemporaries whose approach to judging the nominee has praised, as these jurists may provide
insight into who he might model his judicial approach after if he were to be elevated to the High
Court.230 As is perhaps evident in the importance the nominee places on judicial formalism and
the concept of the judge as a neutral umpire, Justice Scalia and Chief Justice Roberts are two of
the nominee’s judicial role models. With regard to Justice Scalia, Judge Kavanaugh has stated
that “Justice Scalia was and remains a judicial hero and role model to many throughout America,”
one who believed “that federal judges are not common-law judges and should not be making
policy-laden judgments.”231 Of particular note, the nominee credits Justice Scalia with bringing
“about a massive and enduring change in statutory interpretation,”232 one focused on “the
centrality of the words of the statute.”233 And with regard to Chief Justice Roberts, Judge
Kavanaugh has described him as “lead[ing] the Court and the judiciary with [a] firm but humble
touch.”234
But Justice Scalia and Chief Justice Roberts are not the only jurists Judge Kavanaugh has
commented on when describing who has influenced his view of judging. The nominee has lauded
several jurists with varying judicial philosophies, including former Chief Justice William
Rehnquist, as well as Justices Robert Jackson, Byron White, and Elena Kagan. In a speech
dedicated to Chief Justice Rehnquist, the nominee described him as his “first judicial hero” and
stated that “few justices in history have had as much impact as [Chief Justice] Rehnquist.”235 The
nominee remarked that as early as his law school days, he found frequent agreement with Chief
Justice Rehnquist’s opinions.236 Of particular significance to Judge Kavanaugh is the “importance
226 Kavanaugh, AEI Interview, supra note 202, at 50:43.
227 Id. at 51:12.
228 Id. at 49:04.
229 See also Kavanaugh, Justice Scalia, supra note 92, at 11:38 (arguing that Justice Scalia “never wrote a better
dissent” than the one in Morrison and predicting that it will one day become the law of the land).
230 See Wolf, supra note 65 (noting, with respect to Judge Kavanaugh, that “you can tell a lot about” the nominee based
on his judicial friends and mentors); see also Kavanaugh, 2006 Confirmation Hearing, supra note 27, at 23–24
(discussing the jurists who have been “role models” to the nominee).
231 Kavanaugh, Two Challenges, supra note 14, at 1908–09.
232 Id. at 1910; see also Kavanaugh, Fixing Statutory Interpretation, supra note 25, at 2118 (“Statutory interpretation
has improved dramatically over the last generation, thanks to the extraordinary influence of Justice Scalia.”);
Kavanaugh, Administrative State, supra note 22, at 719 (“We made great progress in statutory interpretation, I think,
over the last couple of decades—again, Justice Scalia deserves a lot of credit, and many others do as well—but we still
have a ways to go, even with our shared grounding in the importance of the statutory text.”).
233 Kavanaugh, Fixing Statutory Interpretation, supra note 25, at 2118 (“By emphasizing the centrality of the words of
the statute, Justice Scalia brought about a massive and enduring change in American law.”).
234 Kavanaugh, From the Bench, supra note 24, at 19.
235 Id. at 6, 18.
236 Id. at 6 (“In case after case after case during law school, I noticed something. After I read the assigned reading, I
would constantly make notes to myself: Agree with Rehnquist majority opinion. Agree with Rehnquist dissent. . . . And
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of [Chief Justice] Rehnquist to modern constitutional law.”237 Judge Kavanaugh has attributed to
Chief Justice Rehnquist many of the principles that inform the nominee’s judicial philosophy.
According to the nominee, “[d]uring [Chief Justice] Rehnquist’s tenure, the Supreme Court
unquestionably changed and became more of an institution of law, where its power is to interpret
and to apply the law as written, informed by historical practice, not by its own personal and
policy predilections.”238
As to Justices Jackson and White, Judge Kavanaugh identified both as “role models” during his
confirmation hearing in 2006 as a nominee to the D.C. Circuit.239 Specifically, Judge Kavanaugh
pointed to Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, a
landmark separation-of-powers case wherein Justice Jackson established a three-part framework
for assessing executive wartime powers.240 The nominee described the framework as “a work of
genius . . . in terms of setting out the different categories of Presidential power and Congressional
power in times of war and otherwise,”241 and has cited it throughout his writings and speeches as
influential on the nominee’s view of the separation of powers.242 Judge Kavanaugh has also
identified Justice Jackson as the “role model for all executive branch lawyers turned judges,”
such as Judge Kavanaugh himself.243 As to Justice White, Judge Kavanaugh has written less about
his influence, but approved of Justice White’s “approach to judging” characterized by “judicial
restraint.”244
Finally, Judge Kavanaugh has suggested an affinity with Justice Kagan based, in part, on their
similar backgrounds in the executive branch.245 He has also cited Justice Kagan throughout his
his opinions made a lot of sense to me. In class after class, I stood with Rehnquist.”).
237 Id. at 5; see also id. at 6 (“For a total of 33 years, William Rehnquist righted the ship of constitutional
jurisprudence.”).
238 Id. at 5.
239 Kavanaugh, 2006 Confirmation Hearing, supra note 27, at 24.
240 343 U.S. 579, 634 (1952) (Jackson, J., concurring
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