The next US Supreme Court Justice will play a pivotal role on the court. He or she will replace Justice Anthony Kennedy, who has served as the swing vote on key court decisions affecting fundamental rights in many important cases over the past three decades. These have included five-to-four decisions in: Planned Parenthood v. Casey, upholding essential parts of the seminal case Roe v. Wade, recognizing the constitutional right to abortion; Obergefell v. Hodges, invalidating bans on marriage for same-sex couples across the United States; Roper v. Simmons, holding that executing those who were under age 18 when they committed their crimes is unconstitutional; and Boumediene v. Bush, granting Guantánamo detainees the ability to challenge the legal basis for their imprisonment in US federal court.
These and other important rights guarantees hang in the balance now that Justice Kennedy has retired. A newly constituted court will decide cases impacting a range of important civil and other human rights like the rights to life; due process; freedom from arbitrary and unlawful detention; freedom from discrimination; free expression; privacy; and health; and the right of women to reproductive freedom.
Judge Brett Kavanaugh of the US Court of Appeals for the DC Circuit, US President Donald Trump’s nominee to replace Justice Kennedy, has a record that raises serious concerns that he would interpret the US Constitution in ways that could erode federal protections of some or all of these rights. Opinions issued during his 12 years on the DC Circuit Court, and speeches and writings throughout his career, indicate that if confirmed he may well support:
- further restrictions on the right to abortion and access to reproductive health care services;
- a rollback of laws and regulatory actions that protect the environment and human health;
- limits to the due process rights of criminal defendants and those detained by US authorities for other reasons, especially in a national security context;
- new restrictions on the right to a remedy for victims of government abuse;
- limits on the application of labor laws to undocumented workers;
- broad executive powers to employ mass, warrantless surveillance;
- limits on accountability for police abuse by strengthening immunity doctrines;
- new exceptions to the US Constitutional Fourth Amendment protections against warrantless searches and seizures;
- fewer restrictions on the imposition of the death penalty;
- limits to laws that protect against discrimination based on sexual orientation.
Kavanaugh’s record also indicates that he may fail to defend net neutrality, a policy that promotes free speech on the internet, and that he may refuse to accept the relevance of international human rights law when interpreting certain US law.
Kavanaugh held several senior jobs during the George W. Bush administration, including in the White House counsel's office (2001-2003) and as White House staff secretary (2003-2006). Media reports indicate that the George W. Bush Presidential Library likely has millions of pages of documents relating to Kavanaugh—vastly more than the executive branch has ever produced for a previous Supreme Court nominee.[1] Many of these documents have not been made public[2] and the Chair of the Senate Judiciary Committee Chuck Grassley (R-IA) has only requested documents from Kavanaugh’s time in the White House counsel’s office, not his time as staff secretary.[3] Grassley has scheduled Kavanaugh’s nomination hearing for September 4, 2018, though the National Archivist has said he doesn’t expect to be able to produce many of the documents Grassley has requested until the end of October. The impasse over the request for documents has prompted minority members of the judiciary committee, for the first time in relation to records for a Supreme Court nominee, to file a Freedom of Information Act (FOIA).[4] US Senators have an obligation to advise and consent on this nomination and need to be given access to all relevant records prior to the hearing.
We urge Senators to fully review judge Kavanaugh’s record on these and other issues and to question him closely about his positions on the many key rights protections that hinge on the Supreme Court’s jurisprudence.
Women’s Health – Right to Abortion
Right to Respect for Private Life
State Ability to Protect Immigrant Rights
Right to be Free from Arbitrary Detention - National Security
Remedies against Government Torture, Other Abuse
Rights Protected by Agency Action – Consumer Protection, Net Neutrality, Environmental Rights
Right to Freedom of Expression - Net Neutrality
Women’s Health – Right to Abortion
In a series of cases over the last five decades, the Supreme Court has taken important steps to protect women’s health and human rights, including their freedom to access contraceptive care and abortion services. Kavanaugh’s nomination raises concerns not just that women’s constitutional right to access abortion care could be curtailed, but their access to other comprehensive reproductive health care could be limited as well.
Most at risk is women’s access to abortion. During his campaign, Donald Trump promised that he would appoint pro-life justices that would “automatically” overturn Roe v. Wade, the seminal case recognizing the constitutional right to abortion.[5] Following Kennedy’s announcement, Trump again said that after a new justice is seated, a woman’s right to access an abortion could fall to states to determine.[6] In that scenario, many states would criminalize abortion. Four states already have “trigger laws”[7] on the books that automatically outlaw abortion if Roe is overturned, and dozens of others have laws that put access to abortion at “high risk.”[8]
Kavanaugh has not had any occasion to rule directly on the constitutionality of restrictions on abortion. He did issue a vigorous dissent in Garza v. Hargan, a 2017 case that permitted a 17-year-old unaccompanied, undocumented, girl in immigration detention, already in her third trimester of pregnancy, to obtain an abortion without further delay.[9] In his dissent, Kavanaugh did not dispute that the girl had a right to an abortion. However, he argued that though she met all the legal requirements set by the state where she was detained to access an abortion, forcing her to wait longer for the government to continue to try to find her an immigration sponsor—and possibly longer since if the government could not do so “expeditiously” he suggested she would have to reinitiate litigation—would not be an “undue,” and therefore constitutionally impermissible, burden on this right. His dissent focused on the fact that the Supreme Court “has repeatedly said that the government has permissible interests in favoring fetal life, protecting the best interests of the minor, and not facilitating abortion.”
To protect and realize women’s human rights, states should eliminate unreasonable restrictions on safe and legal abortion. [10] Time and again, Human Rights Watch and other research shows that those who suffer most from legal restrictions on access to abortion are poor and marginalized women and girls.[11]
Even without fully overturning Roe, a decision that narrows the Court’s understanding of what kinds of restrictions or regulations present an undue burden to a woman or girl seeking an abortion, or one that redefines the test for analyzing the constitutionality of abortion regulations, could severely curtail women’s and girls’ reproductive rights in the United States.
In another decision, Priests for Life v. US Department of Health and Human Services, Kavanaugh dissented from the en banc court’s refusal to hear an appeal from a non-profit religious group’s claim that an accommodation for them to opt-out of the requirement in the Affordable Care Act (ACA) that companies such as theirs provide contraceptive coverage to their employees, did not go far enough.[12] Though they could opt-out of the requirement, the plaintiffs claimed the form they were required to fill out to do so violated their religious exercise rights under the Religious Freedom Restoration Act (RFRA) because it constituted a “trigger” that would facilitate contraceptive use by their employees, making them complicit in the provision of contraceptives.[13] In his dissent Kavanaugh argued the majority had improperly second guessed the sincerity of the plaintiff’s religious beliefs by finding that filling out the form did not impose a substantial burden of the religious exercise rights of the plaintiffs.[14] He stated that he would have deferred to the plaintiffs views and found a violation of those rights.[15]
Senators should ask Kavanaugh what he believes are constitutionally reasonable restrictions that might be placed on women accessing reproductive health care. In addition, they should ask for Kavanaugh’s views on whether women have the right to access accurate and complete information about their full range of reproductive health offered by a provider or legally available to her.
Right to Health
The United States is one of the few nations that has not ratified the International Covenant of Economic, Social and Cultural Rights, which codifies the right to health under international law.[16] The treaty does not guarantee the right of everyone to be healthy but it does require governments to enact policies that promote the availability and affordability of basic health care services, without discrimination against those most likely to face obstacles gaining access—the poor, minorities, persons with disabilities, women and children among others.[17]
Because many of the Trump administration’s signature policies represent efforts to move in the opposite direction, Kavanaugh’s nomination to the Supreme Court raises the stakes for the future of access to health care for millions of Americans. As the Affordable Care Act (ACA), Medicaid, and reproductive health care rights continue to be the subject of litigation in both federal and state courts, the Supreme Court is likely to act as the final arbiter on the constitutionality and permissibility of these programs, with profound and far-reaching rights impacts.
Judge Kavanaugh’s dissenting opinions in two cases relating to the ACA raise concerns that he would support constitutional and statutory challenges to this important legislation that has resulted in increased insurance coverage, both private and through the Medicaid program, for more than 20 million people since its passage in 2010. Judge Kavanaugh’s dissent in the case of Seven-Sky v. Holder suggests an expansive view of executive power that could have continuing broad impact on the ACA and other federal legislation protecting the right to health. In Seven-Sky, the DC Circuit Court of appeals upheld a challenge to the constitutionality of the ACA’s individual mandate; Kavanaugh dissented but not on the merits. He dissented because he believed that the court lacked jurisdiction to hear the case because the individual mandate was a tax which the Anti-Injunction Act barred from adjudication until the tax had been assessed. He hinted that the individual mandate may well be constitutional under Congress’ taxing power or that, at most, a minor tweak to the statute would render it clearly constitutional. But he also suggested that the president might himself conclude that the individual mandate is unconstitutional and just decline to enforce it. He also stated that upholding it under the commerce clause, (as the Supreme Court later did) would extend the commerce clause in ways that would be “unprecedented on the federal level in American history.”[18]
Restrictions to the ACA and Medicaid, among others, could have a disproportionate impact on people with disabilities, minorities and the poor. Kavanaugh’s support of an expansive interpretation of the Religious Freedom Restoration Act as in the Priests for Life case (above) is also of particular concern and relevance here, in light of the Trump administration’s recent proposed expansion of Health and Human Services regulations permitting a wide range of providers to refuse health services on religious and moral grounds without adequate protection from discrimination.[19]
Senators should ask Kavanaugh for his views on the constitutionality of the ACA, and question him on his approach to balancing the rights of religious freedom with the right to be free from discrimination.
LGBT Rights
Kavanaugh has had few opportunities to express his views on LGBT rights. But because he will replace Justice Kennedy – who authored some of the Supreme Court’s most consequential opinions on LGBT rights, often for a slim majority – Kavanaugh’s stance on this issue is extremely important
One of the main threats to LGBT rights at present is the use of religious freedom arguments to seek exemptions from laws that protect the rights of LGBT people. In recent years, litigants have sought to use the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause to challenge laws requiring government officials to register the marriages of same-sex couples and laws prohibiting discrimination in education, employment, housing, healthcare, and public accommodations.[20] In 2018, the Supreme Court issued a narrow ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, sidestepping the larger questions and virtually assuring that these cases will return to the Supreme Court in future terms.[21]
While Judge Kavanaugh has not directly ruled on these issues, his dissent from the denial of rehearing en banc in Priests for Life, in which he was highly deferential to the plaintiff’s views as to how substantially their religious freedom rights were impacted by a provision of the Affordable Care Act (ACA) (see above), raises questions about how he would address these types of claims.[22] While portions of Kavanaugh’s analysis indicated that the government does have a compelling interest in combatting discrimination,[23] it would be helpful to understand his views on the proper scope of statutory and constitutional religious freedom protections, particularly when they result in harms to third parties.
Other issues that are likely to come before the court will also be highly consequential for LGBT people. In recent years, a circuit split has developed among the courts of appeals as to whether discrimination based on sexual orientation is a form of sex discrimination under Title VII.[24] The Supreme Court has not decided this issue, but litigants are filing petitions for certiorari requesting that the court resolve the disagreement among the circuits. While most circuits agree that discrimination based on gender identity is a form of sex discrimination, this issue may also reach the Supreme Court in future terms. Finally, the court will likely be confronted with efforts to limit the scope of the Obergefell v. Hodges decision by restricting the benefits offered to same-sex couples.[25] In 2017, the Supreme Court struck down an Arkansas policy prohibiting the same-sex spouses of biological mothers from appearing on children’s birth certificates,[26] and in the same year the Texas Supreme Court found same-sex spouses of public employees may not be entitled to government-subsidized marital benefits.[27]
Senators should ask Kavanaugh whether he believes Obergefell v. Hodges was correctly decided. They should also ask what he understands the term “substantially” to mean in the context of the Religious Freedom Restoration Act and what the court’s role is in scrutinizing whether any burden imposed is substantial.
Right to Respect for Private Life
Under international human rights law, all government activities that interfere with an individual’s privacy or correspondence must be necessary and proportionate to achieving a legitimate goal, carried out in accordance with the laws that are on the books, and authorized by an independent entity (typically a court).[28] Judge Kavanaugh’s approach to privacy in a critical case raises concerns that he will ignore several of these principles and permit massive, warrantless spying on people in the US and elsewhere whom the government has no reason to suspect of any wrongdoing.
In 2013, former National Security Agency (NSA) contractor Edward Snowden revealed that the US government was gathering the telephone call records of Verizon customers in the US in bulk.[29] Records of whom an individual has called, when, and for how long can reveal many aspects of private life, from romantic relationships and religious practices to medical conditions.[30] By collecting this data en masse, the government warrantlessly monitored potentially sensitive information about millions of people who were not suspected of any crime.
Attorney Larry Klayman swiftly filed suit against the government, claiming that the NSA’s massive surveillance violated privacy and free-expression rights enshrined in the US Constitution. [31] While the case was pending in federal court, Congress adopted the USA Freedom Act, curtailing the bulk collection Snowden had disclosed. Months later, Judge Kavanaugh appended an unnecessary comment to a decision in Klayman’s case denying the reconsideration of a ruling by the federal appeals court allowing the NSA to continue collecting phone records in bulk during a transitional period after the USA Freedom Act became law. [32] In doing so, he embraced the ideas underlying a 1979 Supreme Court decision, reached during the age of itemized landline telephone billing, which found that people lack a reasonable expectation of privacy in the telephone numbers they dial. Based on this, he reasoned that the government is entitled to sweep up all the data our cell phones generate, aside from the content of conversations.[33] As a majority of the Supreme Court has now acknowledged, modern cell phones can automatically generate large amounts of sensitive data, meaning that massive surveillance of that data may also amount to a massive intrusion on privacy. [34]
Judge Kavanaugh’s 2015 comment also embraced the concept that that government searches respect privacy rights as long as they are “reasonable.” This approach could leave the traditional warrant requirement—a crucial protection for human rights—in the dust, potentially facilitating enormous amounts of suspicionless spying by the executive branch and doing lasting harm to rights.[35]
Senators should press Kavanaugh on his views regarding mass, large-scale or discriminatory surveillance; the sensitivity of call records and other data about communications; and how the warrant requirement applies to modern communications technology.
Immigration
Kavanaugh has not been involved in many immigration cases but President Trump has implemented policies since he took office that have extensively undermined immigrant rights, many of which are being, or likely will be, challenged at the Supreme Court. In June Trump tweeted[36] that immigrants who enter the US illegally should be deported without hearings, and in Garza v. Hargan (above) the Trump Justice Department took a position suggesting that non-citizens who enter the US illegally do not have due process rights under the Constitution. In Garza Kavanaugh dissented from the majority finding that an immigrant teen should be released to obtain an abortion, but he did not join another judge’s dissent that the teen had no substantive due process rights due to her unlawful entry.[37]
It is long-established under US law that all persons in the US, regardless of immigration status, have all rights enumerated to “persons” in the Constitution, including due process rights. International law similarly does not limit due process rights, such as “the right to a fair and impartial trial” to citizens. The Supreme Court has played a major role in defining the extent to which non-citizens have due process rights. In Sessions v. Dimaya,[38] a recent case in which the Court held that the definition of the aggravated felony of “crime of violence” requiring the deportation of a lawful permanent resident, was unconstitutionally vague, and in Zadvydas v. Davis,[39] the court found that indefinite detention of non-citizens after they were ordered removed would violate due process.
Senators should ask Kavanaugh about to the extent to which he believes that undocumented immigrants, including those who entered the US illegally, have due process rights under the Constitution. Kavanaugh should be asked whether there are contexts in which immigrants who entered the US without authorization do not have due process rights, and if so, what those are. He should also be asked whether he agrees with the holdings in Dimaya and Zadvydas.
State Ability to Protect Immigrant Rights
The Trump administration has sued the State of California for its so-called “sanctuary laws,” which limit state and local involvement in federal immigration enforcement. It argues that these laws are preempted by federal law and violate the Supremacy Clause of the Constitution. A district court judge ruled in favor of California, but the federal government has appealed and the case could come before the Supreme Court. The Court has played a major role in this area. In US v. Arizona it struck down portions of Arizona’s law that made it a state crime to be in the US without lawful status or to apply for a job or work without lawful status.[40]
Senators should question Kavanaugh about what aspects of immigration enforcement he thinks states can regulate without violating the Supremacy Clause.
Immigrant Rights to Education
The right to a public education, regardless of immigration status, was established more than three decades ago in the Supreme Court decision Plyler v. Doe.[41] Since then, however, numerous states and localities have sought to limit access to education for undocumented children and the children of undocumented parents. The right to an education is a fundamental human right belonging to all children, regardless of immigration status.
Senators should ask Kavanaugh whether he agrees with the holding of Plyler v. Doe.
Immigrant Workers’ Rights
In Agri Processor Co. v. NLRB, a meat wholesaler argued that it did not have to recognize and bargain with a union because it had discovered many of the workers who had voted to unionize were undocumented. Judge Kavanaugh dissented from the majority opinion that the National Labor Relations Act (NRLA) applies to undocumented workers, stating, “I would hold that an illegal immigrant worker is not an ‘employee’ under the NLRA for the simple reason that, ever since 1986, an illegal immigrant worker is not a lawful ‘employee’ in the United States.”[42]
The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), establish that all workers in a country, including non-citizens with or without governmental permission to work, are entitled to a safe and healthy workplace; compensation for workplace injuries and illnesses; freedom of association and the right to form trade unions and bargain collectively; equality of conditions and rights for immigrant workers. [43] The United States government has committed itself to protecting these rights. It was a principal author, sponsor, and signer of the Universal Declaration; it has signed and ratified the ICCPR; and it has signed but not ratified the ICESCR. Application of labor laws to undocumented workers also benefits lawful residents and citizens as employers should not have an incentive to hire undocumented workers.
Senators should ask Kavanaugh whether he believes other labor laws, such as the Fair Labor Standards Act, apply to undocumented workers.
Right to be Free from Arbitrary Detention - National Security
In the 2008 case, Boumediene v. Bush, the Supreme Court granted Guantanamo Bay detainees the right to habeas corpus, allowing them the right to challenge their detention in federal court. [44] Under Boumediene these challenges were supposed to be meaningful. Since then numerous Guantanamo detainees have brought cases in US federal court seeking their release. Because Judge Kavanaugh sits on the DC Circuit Court of Appeals, where these cases are heard, he has played a large role in interpreting the legality of the detentions under US law. In Al-Bihani v. Obama[45] and Al-Adahi v. Obama,[46] he ruled that detainees are only entitled to minimal due process procedures under which detainees have not been able to meaningfully challenge their imprisonment.[47] The procedures these cases established do not meet international legal standards.
Kavanaugh has issued opinions permitting the government to hold individuals at Guantanamo until the “end of hostilities” if it finds that they are “more likely than not,” members of al-Qaeda, the Taliban, or associated forces, based on a preponderance of the evidence standard, already one of the lowest standards of proof permitted for evidence in US cases.[48] In Al-Adahi, the DC Circuit went further to note that an even lesser standard of just “some evidence” would be permissible.[49] Under this line of cases, the government can also rely on hearsay and courts cannot discard pieces of evidence merely because they deem them unreliable, they must look at all the evidence as a whole, even if on its own some pieces of evidence may be unreliable. Using this standard, with one exception,[50] the DC Circuit denied every case that Guantanamo detainees brought before it claiming that they were being unlawfully held, including claims that had been won at the lower court level.[51] A later 2011 DC Circuit decision, Latif v. Obama, of which Kavanaugh was not a part, further lowered the review standard by requiring courts to presume the accuracy of the government’s evidence, subject to rebuttal, prompting dissenting judge David Tatel to ask what was left of Boumediene’s requirement that federal court review of detentions at Guantanamo be “meaningful.” [52] Since Latif the DC Circuit has continued to deny all unlawful detention claims brought by Guantanamo detainees. The decision to give the government’s evidence great deference is particularly troubling given that over the years the US government has detained inmates at Guantanamo based on inaccurate analysis of evidence,[53] misinformation,[54] evidence derived from torture or that is unreliable in other ways,[55] and mistaken identity.[56] Detentions at Guantanamo have been going on for 16 years now. The majority of the 40 men still held at the facility have never been charged with a crime.[57]
If confirmed, Judge Kavanaugh will have some say in what standards are applied should President Trump follow through on his promise to send new detainees to Guantanamo, as well as any new claims brought by current Guantanamo detainees. Last year many current Guantanamo detainees filed a new challenge in US federal court arguing that after so many years, any legitimate rationale for detaining them has expired.[58] Further, Judge Kavanaugh could apply the standards he articulated in Guantanamo decisions to detentions in other national security contexts.
During his confirmation hearing Judge Kavanaugh should be asked about the detention standards articulated in Al-Bihani and Al-Adahi given the passage of time, and since he was not part of Latif, whether he agrees with that decision. He should also be presented with information about how this low evidentiary burden impacted the cases of individual detainees, both those finally released and those still held and asked whether he is aware of these facts. President Trump has promised to keep Guantanamo open and potentially use the facility to house new detainees.
Applying International Law
Judge Kavanaugh has shown considerable reluctance toward applying international law in US court decisions. As University of Texas law professor Steve Vladeck has stated, Judge Kavanaugh “has consistently questioned the relevance of international law in shaping the executive’s war powers and construing legislative authorizations.”[59]
In Al-Bihani above, in discussing congressional authorization to hold Guantanamo Bay detainees, he and another judge called it a “radical” proposition that international law could limit the scope of the president’s war-making authority and considered it entirely inappropriate.[60] In a later 2012 case, Hamdan v. US, he did look to international law in deciding that Hamdan’s conviction of material support for terrorism before a Guantanamo military commission violated the Ex-Post Facto clause of the US Constitution baring criminal punishment for conduct that occurred before any law made that conduct illegal, but in this case a US statute required it. [61]
Senators should question Kavanaugh on whether he would look to binding international law, both treaty and custom, that is part of the law of the United States when interpreting the constitutionality of US executive action, such as war powers or the meaning of the US Constitution’s prohibition on cruel and unusual punishment if not specifically required by a US statute.
Remedies against Government Torture, Other Abuse
In Saleh v. Titan, a 2009 case brought by individuals alleging they were abused by US hired contractors at Abu Ghraib in Iraq, Kavanaugh ruled their claims were barred by federal law even though that law expressly exempted contractors from its scope. [62] The decision drew a sharp dissent from judge Merrick Garland who noted that it would bar any similar suit “even if the plaintiff had photographs that unambiguously showed private contractors in the act of abusing them.”[63]
Kavanaugh also held that a US citizen allegedly detained, interrogated, and tortured by US law enforcement personnel overseas could not sue for harm caused under what is known as a Bivens remedy, named after the 1971 case Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. Bivens permits plaintiffs to sue in US federal court for harm caused by federal officers for violations of their constitutional rights, even if not expressly authorized by statute. [64] In rejecting the plaintiff’s claim in Meshal v. Higgenbotham,[65] Kavanaugh, joined an opinion[66] holding that while the government’s conduct was “troubling,” an exception to the Bivens doctrine for this national security case applied, especially, since it involved conduct abroad. “Make no mistake” he wrote, “if we were to recognize a Bivens action in this case US officials undoubtedly would be more hesitant in investigating and interrogating suspected al Qaeda members abroad.”[67] This is likely true but also would be welcome; permitting a remedy for such conduct would help in preventing such abuse.
Before Justice Kavanaugh was appointed to the DC Circuit, he held several senior jobs in the White House during the George W. Bush administration, including in the White House counsel’s office and as White House staff secretary. This was during a time when the administration was crafting detention and interrogation policies that used torture and expansive surveillance. During his confirmation hearing in 2006 he denied under oath having any involvement in formulating controversial terrorism detainee policies while working in the George W. Bush White House.[68] Later, reports by both National Public Radio[69] and the Washington Post[70] seemed to contradict those statements. After those media reports, Senator Sen. Dick Durbin (D-Ill.) sent a letter to Kavanaugh asking him to explain the discrepancy but Senator Durbin said he never received a response.[71]
Senators should question Kavanaugh on his role in the formulation of any detention-related policies when he served under the Bush Administration. They should also ask whether he believes that the techniques used on detainees in secret CIA detention, not just waterboarding, but the painful stress positions and days of sleep deprivation, forced nudity, diapering, and denial of food, amounted to torture.
Criminal Justice
Kavanaugh’s criminal law opinions and writings demonstrate a consistent posture of deference to police and skepticism towards mechanisms intended to hold police accountable for rights violations.
Kavanaugh dissented in U.S. v. Askew, in which the DC Circuit held that police officers violated a man’s rights when they unzipped his jacket after they had already completed a pat-down search.[72] In his dissent, Kavanaugh expressed discomfort with courts “second guess[ing]” police officers’ “split second” decisions,” though the situation in this case did not involve fast moving events and courts’ oversight role requires that they “second guess” the actions of officials to uphold US Constitutional rights.[73]
In U.S. v. Bullock, Kavanaugh wrote the majority opinion holding that a police officer making a stop for a traffic violation could order the driver out and conduct a search because the officer suspected the car might be stolen. [74] He went on to say that even without suspicion of the car theft, the officer had a right to conduct the search because Bullock moved his hands towards his lap. And in a 2017 speech at the American Enterprise Institute (AEI), Kavanaugh lauded Supreme Court Chief Justice Rehnquist for “rebalancing Fourth Amendment law to respect the rights of the people and victims of violent crimes as well as of criminal defendants.”[75] “Rebalancing,” in this context, meant giving the government more power, including by making the definition of probable cause more vague, and creating exceptions to the US Constitution’s Fourth amendment requirement that searches only be conducted when there is individualized suspicion. In the speech, Kavanaugh also discussed the importance of Rehnquist’s efforts to roll back what is known as the exclusionary rule, which makes illegally obtained evidence inadmissible in court. This rule is aimed at deterring police misconduct, especially when police make arbitrary arrests and conduct unlawful searches. Kavanaugh approvingly cited to Rehnquist’s belief that the exclusionary rule “was surely not a remedy required by the Constitution,” and praised him for creating exceptions to that rule.[76]
On the other hand, Kavanaugh has taken positions protecting individual rights related to criminal accusations and sentencing. For example, Kavanaugh has written forcefully in favor of presuming that criminal statutes have a mens rea requirement, meaning guilty intent or knowledge, unless explicitly stated otherwise, and has objected to convictions where such proof was not provided.[77]
Senators should ask Kavanaugh whether he believes the exclusionary rule should be overturned and if so, what other incentives would exist to ensure the government respected the prohibition against unlawful government searches and seizures.
Police Accountability
Kavanaugh has issued opinions denying police accountability actions in several cases. In Moore v. Hartman, he dissented from the majority in urging that qualified immunity barred a lawsuit for retaliatory prosecution. [78] In District of Columbia v. Wesby, a case in which the trial court found liability against police officers for arresting without probable cause, Kavanaugh also dissented saying that the officers did have the right to arrest, and, even if they did not, qualified immunity erased any liability since he believed that no previous case had directly addressed this exact situation.[79] The Supreme Court unanimously agreed with Kavanaugh on qualified immunity in overruling the appellate panel in the Wesby case; his presence on the court will strengthen an already prevalent doctrine. Kavanaugh’s views and opinions indicate he favors expanding police immunity from lawsuit.
Senators should ask Kavanaugh what remedies should exist for those whose constitutional rights were violated by the police.
Fair Sentencing
In a 2015 Supreme Court opinion, Davis v. Ayala,[80] Justice Kennedy sided against the defendant, but he filed a concurring opinion that was heavily critical of long-term solitary confinement in which the defendant had been held for most of his 25-plus years, saying it exacted a “terrible price.”[81] In doing so, Kennedy signaled that if the court were presented with a case on the issue, he would likely rule in favor of restrictions on or alternatives to the practice.[82] Justice Kennedy also played a pivotal role in many death penalty cases, for example writing the majority five-to-four opinion in Roper v. Simmons to abolish the death penalty for crimes committed when the defendant was under 18 years of age.[83] Kavanaugh has no written opinions on the death penalty but in his 2017 AEI speech he praised Rehnquist for issuing decisions overturning prior cases that had ruled the practice unconstitutional, paving the way for a number of states to reinstate the death penalty.[84] Human Rights Watch is opposed to the death penalty in all circumstances.
Kavanaugh has, however, taken positions on certain sentencing issues that are protective of rights. In US v. Bell,[85] and US v. Brown,[86] he criticized the practice of judges using conduct for which the defendant was not convicted to increase sentences. While acknowledging that the law did not forbid them from doing so, he encouraged judges to use their discretion and limit the basis for sentences to convicted conduct.
Senators should ask Kavanaugh for his views regarding constitutional limits on solitary confinement, the death penalty, and sentences of life without parole for juveniles.
Rights Protected by Agency Action – Consumer Protection, Net Neutrality, Environmental Rights
Judge Kavanaugh’s opinions have expressed a strong distrust of US government agencies that historically operate with considerable autonomy from the White House, and frequently enforce laws that protect important rights, such as those relating to health and the environment, free expression, or consumer protection. He has called independent agencies “a headless fourth branch of the US government.”[87] He has also been highly critical of what is known as the Chevron deference standard, after the 1984 Supreme Court case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., under which courts must defer in many circumstances to interpretations of statutes made by those government agencies charged with enforcing them, unless such interpretations are unreasonable.[88]
Consumer Protection
In PHH Corp. v. Consumer Fin. Prot. Bureau, Judge Kavanaugh wrote the opinion for a three-member panel of the DC Circuit finding that the structure of the Consumer Financial Protection Bureau (CFPB) – a consumer watchdog agency created to regulate and remedy predatory financial practices in response to the 2008 financial crisis, was unconstitutional.[89] Because the agency was headed by one person who could only be fired for cause (a structure he claimed was unprecedented), he argued it was an unconstitutional violation of separation of powers and too limiting of the president’s authority to conduct executive action. As a remedy, he called for the President to be able to fire the CFPB director at will. The DC Circuit Court of Appeals en banc overturned Kavanaugh’s decision, finding the structure not unprecedented, citing to a number of other similar cases, and that in fact precedent “leaves to the legislative process, not the courts, the choice whether to subject the Bureau's leadership to at-will presidential removal.”[90] The issue of the CFPB’s constitutionality has now been raised in multiple courts, and the appeals court in the 5th Circuit has agreed to hear a case on similar grounds. If the outcome differs from the DC Circuit, it is likely that a similar case will find its way to the Supreme Court before long.
In the coming years, the Supreme Court is likely to decide cases that could mean a significant shift in how critical financial and consumer protection regulation, like the Fair Debt Collection Practices Act, is supervised and enforced.
Senators should question Kavanaugh on his view of the role of independent agency enforcement of consumer protection laws.
Right to Freedom of Expression - Net Neutrality
In 2016, Kavanaugh wrote a dissent in United States Telecom Ass’n v. Fed. Commc’ns Comm’n, a decision upholding Federal Communications Commission’s net neutrality order. In his dissent, he criticized the deference, under Chevron, to agency programs, and declared that companies have a constitutional First Amendment right to choose what content to carry.[91] He did not mention that this would enable companies to limit access to information and free expression, potentially creating an internet where users can only easily access the websites that cable companies are paid to prioritize.
A year after Kavanaugh wrote this dissent, the FCC under the Trump administration gutted net neutrality by repealing regulations that required cable companies providing internet services to treat all web traffic equally.[92] More than 20 US states immediately declared their intent to sue the FCC to block the rollback of the regulations.[93] It is very likely that one of those lawsuits will make its way up to the Supreme Court in the coming years. If Kavanaugh is confirmed, he would likely be one of nine justices deciding the landscape of the internet of the future.
Senators should keep in mind that free expression is a human right.[94] Without net neutrality, people on the internet will experience limitations on their access to information and restrictions to their speech on certain publishing and communication platforms.[95]
Senators should press Kavanaugh on his commitment on the right to access information and freedom of expression in the digital age. Senators should inquire about Kavanaugh’s views on the responsibility of the FCC to protect these rights for all people—not just cable companies.
Environmental Rights
The Supreme Court will likely be presented with cases that will have a significant impact on the nature and strength of the federal government’s role in upholding laws passed to protect people and the environment in the United States—in particular, clean air and water.
Federal laws that seek to curtail pollution, including that which harms human health, are likely to face challenges grounded in arguments that they exceed the congressional authority bestowed by the Constitution.
If confirmed, Kavanaugh’s stances on Chevron deference and the independence of regulatory agencies may affect the federal government’s ability to thwart environmental degradation. For example, in EME Homer City Generation, L.P. v. EPA, Judge Kavanaugh wrote the majority opinion for the three judge panel decision striking down the Environmental Protection Agency’s Cross-State Air Pollution Rule, which regulates air pollution that crosses state boundaries, as a violation of the Clean Air Act.[96] Judge Kavanaugh argued that the EPA exceeded its statutory authority in issuing a rule to limit pollutants.[97] The Supreme Court disagreed, upholding the EPA’s anti-pollution rule in a 6-2 vote. Justice Kennedy sided with the EPA.[98]
Senators Should ask Kavanaugh to what extent the EPA has discretion in combating health risks associated with environmental degradation and climate change.
[1] Alex Seitz-Wald, “Kavanaugh Documents Could Answer Decade-old Question of Whether He Misled Congress,” NBC News, July 16, 2018, https://www.nbcnews.com/politics/supreme-court/kavanaugh-documents-could-answer-decade-old-question-whether-he-misled-n891436 (accessed July 30, 2018).
[2] Elana Schor, “Senate Hits Stalemate Over Release of Disputed Kavanaugh Documents,” Politico, July 31, 2018, https://www.politico.com/story/2018/07/31/senate-stalemate-brett-kavanaugh-documents-752583 (accessed August 13, 2018).
[3] Lisa Mascaro, “Democrats Ramp Up Fight for Kavanaugh Documents,” Associated Press, July 31, 2018, https://www.apnews.com/90046ba550e348f99ae9e66529efb9b3 (accessed August 13, 2018).
[4] Jordain Carney, “Senate Dems Make 'Unprecedented' FOIA Request for Kavanaugh Documents,” The Hill, August 8, 2018, http://thehill.com/homenews/senate/400903-senate-dems-make-unprecedented-foia-request-for-kavanaugh-documents (accessed August 13, 2018).
[5] “Fact Check And Full Transcript Of The Final 2016 Presidential Debate,” NPR, October 19, 2016, https://www.npr.org/201cr6/10/19/498293478/fact-check-trump-and-clinton-s-final-presidential-debate (accessed July 18, 2018) (Candidate Trump stating: “That [overturning Roe v. Wade] will happen automatically in my opinion because I am putting pro-life justices on the court.”).
[6] Gregg Re, “Trump Speaks to SCOTUS Pick, Dems' Push to End ICE in Exclusive Fox News Interview,” Fox News, July 1, 2018, http://www.foxnews.com/politics/2018/07/01/trump-speaks-to-scotus-pick-dems-push-to-end-ice-in-exclusive-fox-news-interview.html (accessed July 18, 2018).
[7] Alison Durkee, “These States Have “Trigger Laws” Banning Abortion on the Books in Case ‘Roe v. Wade’ is overturned,” Mic, July 2, 2018, https://mic.com/articles/190095/these-states-have-trigger-laws-banning-abortion-on-the-books-in-case-roe-v-wade-is-overturned#.z079g3LjP (accessed July 18, 2018).
[8] “What if Roe Fell?,” Center for Reproductive Rights, https://www.reproductiverights.org/what-if-roe-fell (accessed July 18, 2018).
[9] Garza v. Hargan, 874 F.3d 735, 752 (D.C. Cir. 2017) (Kavanaugh, J., dissenting), cert. granted, judgment vacated sub nom. Azar v. Garza, 138 S. Ct. 1790 (2018).
[10] Human Rights Watch, “Amicus Curiae: Decriminalization of Abortion in Brazil up to 12 weeks,” April 25, 2017, https://www.hrw.org/news/2017/04/25/amicus-curiae-decriminalization-abortion-brazil-12-weeks.
[11] See, for example, Guttmacher Institute, “Abortion Worldwide 2017: Uneven Progress and Unequal Access,” March 2018, https://www.guttmacher.org/report/abortion-worldwide-2017 (accessed June 27, 2018), pp. 21-23; Human Rights Watch, Neglected and Unprotected: The Impact of the Zika Outbreak on Women and Girls in Northeastern Brazil, July 2017, https://www.hrw.org/report/2017/07/12/neglected-and-unprotected/impact-zika-outbreak-women-and-girls-northeastern-brazil; Human Rights Watch, A State of Isolation: Access to Abortion for Women in Ireland, May 2010, https://www.hrw.org/report/2010/01/28/state-isolation/access-abortion-women-ireland; Human Rights Watch, Decisions Denied: Women’s Access to Contraceptives and Abortion in Argentina, June 2005, https://www.hrw.org/report/2005/06/14/decisions-denied/womens-access-contraceptives-and-abortion-argentina.
[12] Priests for Life v. United States HHS, 808 F.3d 1, 25 (D.C. Cir. 2015)(en banc).
[13] Priests for Life v. United States HHS, 772 F.3d 229, 237 (D.C. Cir. 2014).
[14] Priests for Life, 808 F.3d 1, 19 (D.C. Cir. 2015)(en banc).
[15] Priests for Life, 808 F.3d at 14 (D.C. Cir. 2015)(en banc).
[16] Universal Declaration of Human Rights, adopted December 10, 1948, G.A. Res. 217A(III), UN Doc A/810 at 71 (1948) art. 25; International Covenant of Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.C. Res. 2200 A (XXI), 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966), 993 UNTS 3, entered into force January 3, 1976, arts. 2 and 12.
[17] UN Committee on Economic, Social and Cultural Rights, General Comment 14, The Right to the Highest Attainable Standard of Health, UN Doc E/C.12/2000/4 (2000).
[18] Seven-Sky v. Holder, 661 F. 3d 1 (DC Circuit 2011), abrogated by National Federation of Independent Business v. Sebelius, 567 US 519 (2012).
[19] Priests for Life, supra.
[20] Religious Freedom Restoration Act, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993).
[21] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 138 S. Ct. 1719 (2018).
[22] Priests for Life v. U.S. Dep't of Health & Human Servs., 808 F.3d 1 (D.C. Cir. May 20, 2015) (on denial of reh'g en banc) (Kavanaugh, J., dissenting).
[23] Ibid., at 22. (“Examples of compelling interests from past Supreme Court cases include conducting the military draft, maintaining the tax system, running the Social Security program, and preventing discrimination against third parties.”) (emphasis added).
[24] The Seventh Circuit became the first federal appellate court to hold that workplace discrimination on the basis of sexual orientation is unlawful under Title VII of the Civil Rights Act of 1964 (“Title VII”) in Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. Apr. 4, 2017) (en banc). The Eleventh Circuit reached the opposite conclusion on the same question. See Evans v. Georgia Reg'l Hosp., 850 F.3d 1248 (11th Cir. Mar. 10, 2017), cert. denied, 138 S. Ct. 557 (2017).
[25] Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
[26] Pavan v. Smith, 137 S. Ct. 2075 (2017).
[27] Pidgeon v. Turner, 538 S.W.3d 73 (Tex. June 30, 2017), cert. denied, 138 S. Ct. 505 (2017).
[28] See generally Office of the U.N. High Commissioner for Human Rights, “The right to privacy in the digital age,” U.N. doc. A/HRC/27/37 (June 30, 2014); Sarah St.Vincent, “Preventing the Police State: International Human Rights Laws Concerning Systematic Government Access to Communications Held or Transmitted by the Private Sector,” Bulk Collection (ed. Fred H. Cate & James X. Dempsey) (2017).
[29] Glenn Greenwald, “NSA collecting phone records of millions of Verizon customers daily,” The Guardian, June 6, 2013, https://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order (accessed July 18, 2018).
[30] Decl. Professor Edward W. Felten, Aug. 26, 2013, Am. Civil Liberties Union v. Clapper, 959 F. Supp. 2d 724 (S.D.N.Y. Dec. 27, 2013), aff'd in part, vacated in part, remanded, 785 F.3d 787 (2d Cir. May 7, 2015) https://www.aclu.org/files/pdfs/natsec/clapper/2013.08.26%20ACLU%20PI%20Brief%20-%20Declaration%20-%20Felten.pdf, paras. 38-46 (accessed August 20, 2018).
[31] Complaint, Case 1:13-cv-0088, Larry KLAYMAN v. Barack Hussein OBAMA, 2013 WL 2501741 (D.D.C.) https://www.clearinghouse.net/chDocs/public/NS-DC-0007-0002.pdf (accessed August 20, 2018).
[32] Steven Nelson, “Brett Kavanaugh's defense of NSA phone surveillance looms as confirmation question,” Washington Examiner, July 9, 2018, https://www.washingtonexaminer.com/news-white-house/supreme-court-nominee-brett-kavanaughs-defense-nsa-phone-surveillance-confirmation-question (accessed July 18, 2018).
[33] Klayman v. Obama, 805 F.3d 1148 (D.C. Cir. Nov. 20, 2015) (on denial of reh'g en banc).
[34] Human Rights Watch, “Supreme Court Cell Phone Decision Is a Victory for Reality,” dispatch, June 22, 2018, https://www.hrw.org/news/2018/06/22/supreme-court-cell-phone-decision-victory-reality.
[35] Cindy Cohn, “Protecting the Fourth Amendment in the Information Age: A Response to Robert Litt,” Yale Law Journal, July 27, 2016 https://www.yalelawjournal.org/forum/protecting-the-fourth-amendment-in-the-information-age (accessed July 18, 2018).
[36] Doina Chiacu and Sarah N. Lynch, “Trump says illegal immigrants should be deported with 'no judges or court cases,'” Reuters, June 24, 2018, https://www.reuters.com/article/us-usa-immigration-trump/trump-says-illegal-immigrants-should-be-deported-with-no-judges-or-court-cases-idUSKBN1JK0OL (accessed July 18, 2018).
[37] Garza v. Hargan, 874 F.3d 735, 752 (D.C. Cir. Oct. 27, 2017) (Kavanaugh, J., dissenting), cert. granted, judgment vacated sub nom. Azar v. Garza, 138 S. Ct. 1790 (2018).
[38] Sessions v. Dimaya, 138 S. Ct. 1204 (2018).
[39] Zadvydas v. Davis, 533 U.S. 678 (2001).
[40] Arizona v. United States, 567 U.S. 387 (2012).
[41] Plyler v. Doe, 458 U.S. 1131 (1982).
[42] Agri Processor Co. v. N.L.R.B., 514 F.3d 1, 10 (D.C. Cir. Jan 4, 2008) (Kavanaugh, J., dissenting).
[43] Human Rights Watch, Blood, Sweat and Fear: Workers Rights in U.S. Meat and Poultry Plants, 2004, ISBN: 1-56432-330-7, https://www.hrw.org/reports/2005/usa0105/usa0105.pdf, p. 17.
[44] Boumediene v. Bush, 553 U.S. 723 (2008).
[45] Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. Jan 10, 2010), cert. denied, 131 S.Ct. 1814 (2011).
[46] Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. July 13, 2010), cert. denied, 131 S. Ct. 1001 (2011).
[47] Jasmeet K. Ahuja, Andrew Tutt, “Evidentiary Rules Governing Guantánamo Habeas Petitions: Their Effects and Consequences,” 31 Yale L. & Pol'y Rev. 185 (2012). https://ylpr.yale.edu/sites/default/files/YLPR/ahuja_tutt_evidentiary_rules_governing_guantanamo_habeas_petitions-_their_effects_and_consequences.pdf (accessed July 11, 2018).
[48] Al-Bihani, 590 F.3d at 878. See also Linda Greenhouse, “The Mirror of Guantánamo,” New York Times, December 11, 2013, https://www.nytimes.com/2013/12/12/opinion/greenhouse-the-mirror-of-guantanamo.html (accessed August 15, 2018).
[49] Al-Adahi, 613 F.3d at 1104.
[50] Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. June 28, 2010) (reversed denial of habeas after the Government eschewed reliance upon certain evidence the district court had considered and abandoned its position that Bensayah's detention was lawful because of the support he rendered al Qaeda).
[51] For examples of Judge Kavanaugh’s decisions reversing lower court’s grant of habeas corpus, see Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. July 13, 2010), cert. denied, 131 S. Ct. 1001 (2011), Uthman v. Obama, 637 F.3d 400 (D.C. Cir. March 29, 2011), cert. denied, 132 S.Ct. 2739 (2012), Almerfedi v. Obama, 654 F.3d 1 (D.C. Cir. June 10, 2011), cert. denied, 132 S.Ct. 2739 (2012). Also see Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. June 28, 2010), Salahi v. Obama, 625 F.3d 745 (D.C. Cir. Nov. 5, 2010), Hatim v. Gates, 632 F.3d 720 (D.C. Cir. Nov. 9, 2010), Latif v. Obama, 677 F.3d 1175 (D.C. Cir. Oct. 14, 2011), cert. denied, 132 S.Ct. 2741 (2012).
[52] Latif v. Obama, 677 F.3d 1175 (D.C. Cir. Oct. 14, 2011), cert. denied, 132 S.Ct. 2741 (2012).
[53] Kate Clark, “Waiting for Release: Will Afghans cleared to leave Guantanamo get out before Trump gets in?” Afghanistan Analysts Network, January 14, 2017, https://www.afghanistan-analysts.org/waiting-for-release-will-afghans-cleared-to-leave-guantanamo-get-out-before-trump-ge (accessed July 18, 2018). See also Latif v. Obama, 677 F.3d 1175, 1214 (D.C. Cir. Oct. 14, 2011) (Tatel, J. dissenting) (pointing to numerous inaccuracies in the intelligence reports upon which the government relies in Guantanamo cases).
[54] Laura Pitter (Human Rights Watch), “The Dangers of Guantanamo” commentary, Foreign Affairs, August 24, 2016, https://www.hrw.org/news/2016/08/24/dangers-guantanamo.
[55] Human Rights First, “The Flawed Guantanamo Assessment Files,” Fact Sheet: December 2016, http://www.humanrightsfirst.org/sites/default/files/JTF-GTMO-Assessments-Fact-Sheet.pdf (accessed July 18, 2018).
[56] Carol Rosenberg, “Victims of mistaken identity among the 10 sent from Guantánamo to Oman,” Miami Herald, January 17, 2017, http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article127055319.html (accessed July 18, 2018).
[57] Human Rights Watch, “Q&A: Guantanamo Bay, US Detentions, and the Trump Administration,” June 27, 2018, https://www.hrw.org/news/2018/06/27/qa-guantanamo-bay-us-detentions-and-trump-administration.
[58] Center for Constitutional Rights, “Gitmo Attorneys to Court: Find Perpetual Detention Unlawful and Order Release,” press release, July 11, 2018, https://ccrjustice.org/home/press-center/press-releases/gitmo-attorneys-court-find-perpetual-detention-unlawful-and-order (accessed July 18, 2018).
[59] Stephen I. Vladeck, “One huge difference between Kavanaugh and Kennedy,” Washington Post, July 11, 2018, https://www.washingtonpost.com/opinions/one-huge-difference-between-kavanaugh-and-kennedy/2018/07/11/469b995e-852a-11e8-9e80-403a221946a7_story.html?utm_term=.13eecdcb4fa8 (accessed July 18, 2018).
[60] Al-Bihani v. Obama, 619 F.3d 1, 24 (D.C. Cir. 2010) (on reh'g en banc) (Kavanaugh, J., dissenting).
[61] Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. Oct 16, 2012).
[62] Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. Sept. 11, 2009).
[63] Saleh, 580 F.3d at 20 (Garland, J., dissenting).
[64] Steve Vladeck, “Meshal: The Last, Best Hope for National Security Bivens Claims?” Just Security, June 17, 2014, https://www.justsecurity.org/11784/meshal/ (accessed July 18, 2018).
[65] Meshal v. Higgenbotham, 804 F.3d 417 (D.C. Cir. Oct. 23, 2015), cert. denied, 137 S.Ct. 2325 (2017).
[66] Jonathan H. Adler, “Can a U.S. citizen file suit over alleged torture by U.S. government officials overseas?” Washington Post, October 23, 2015, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/10/23/can-a-u-s-citizen-file-suit-over-alleged-torture-by-u-s-government-officials-overseas/?utm_term=.4bffa06c9c55 (accessed July 18, 2018).
[67] Meshal, 804 F.3d at 431.
[68] Jane C. Timm, “Who is Supreme Court nominee Brett Kavanaugh?” NBC News, July 9, 2018, https://www.nbcnews.com/politics/supreme-court/who-supreme-court-nominee-brett-kavanaugh-n890071 (accessed July 18, 2018).
[69] Ari Shapiro, “Federal Judge Downplayed Role in Detainee Cases,” NPR, June 26, 2007, https://www.npr.org/templates/story/story.php?storyId=11433231 (accessed July 18, 2018).
[70] Barton Gellman, Jo Becker, “Pushing the Envelope on Presidential Power,” Washington Post, June 25, 2007, http://voices.washingtonpost.com/cheney/chapters/pushing_the_envelope_on_presi/ (accessed July 18, 2018).
[71] Jessica, Schulberg, “Brett Kavanaugh On Guantanamo Detainees: International Law Doesn’t Matter,” Huffington Post, July 10, 2018, https://www.huffingtonpost.com/entry/brett-kavanaugh-guantanamo-detainees-international-law_us_5b453053e4b0c523e263ca03 (accessed July 18, 2018).
[72] United States v. Askew, 529 F.3d 1119, 1149 (D.C. Cir. June 20, 2008) (on reh'g en banc) (Kavanaugh, J., dissenting).
[73] Ibid., at 1155.
[74] United States v. Bullock, 510 F.3d 342 (D.C. Cir. Dec. 21, 2007).
[75] American Enterprise Institute, “From the Bench: Judge Brett Kavanaugh on the Constitutional Statesmanship of Chief Justice William Rehnquist,” speech transcript, September 18, 2017, (hereinafter “AEI Speech”) https://www.aei.org/wp-content/uploads/2017/08/from-the-bench.pdf, p. 7 (accessed August 20, 2018).
[76] AEI Speech, p. 9.
[77] United States v. Burwell, 690 F.3d 500, 527 (D.C. Cir. Aug. 3, 2012) (reh'g en banc) (Kavanaugh, J., dissenting); U.S. v. Moore, 612 F.3d 698, 702 (D.C. Cir. July 27, 2010) (Kavanaugh, J., concurring); United States v. Williams, 836 F.3d 1, 19 (D.C. Cir. Sept. 2, 2016) (Kavanaugh, J., concurring).
[78] Moore v. Hartman, 704 F.3d 1003, 1004 (D.C. Cir. Jan. 15, 2013) (Kavanaugh, J., dissenting).
[79] Wesby v. D.C., 816 F.3d 96, 102 (D.C. Cir. 2016) (on denial of reh'g en banc) (Kavanaugh, J., dissenting).
[80] Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015) (Kennedy, J., concurring).
[81] Ibid at 2210.
[82] Dylan Matthews, “America after Anthony Kennedy,” Vox.com, June 27, 2018, https://www.vox.com/policy-and-politics/2018/6/25/17461318/anthony-kennedy-ideology-retirement-supreme-court (accessed August 20, 2018).
[83] Roper v. Simmons, 543 U.S. 551 (2005).
[84] AEI Speech, pp. 9-10.
[85] United States v. Bell, 808 F.3d 926 (D.C. Cir. Dec. 22, 2015) (on denial of reh'g en banc) (Kavanaugh, J., concurring).
[86] United States v. Brown, 892 F.3d 385, 409 (D.C. Cir. June 15, 2018) (Kavanaugh, J., dissenting).
[87] PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1, 6 (D.C. Cir. Oct. 11, 2016), vacated and remanded 881 F.3d 75 (D.C. Cir. Jan. 31, 2018) (en banc).
[88] Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 104 S. Ct. 2778 (1984); Jacob Sullum, “SCOTUS Nominee Brett Kavanaugh Sees Perils of Aggressive Administrative State,” Reason, Jul. 9, 2018, https://reason.com/blog/2018/07/09/scotus-contender-brett-kavanaugh-sees-th (accessed August 12, 2018).
[89] PHH Corp., at 6.
[90] PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75 at 110 (D.C. Cir. Jan. 31, 2018) (en banc).
[91] United States Telecom Ass'n v. Fed. Commc'ns Comm'n, 855 F.3d 381, 417 (D.C. Cir. May 1, 2017) (on denial of reh'g en banc) (Kavanaugh, J., dissenting).
[92] Cecilia King, “F.C.C. Repeals Net Neutrality Rules,” New York Times, December 14, 2017, https://www.nytimes.com/2017/12/14/technology/net-neutrality-repeal-vote.html (accessed July 18, 2018).
[93] Hamza Shaban, Brian Fung, “More than 20 states are suing the FCC over its net neutrality decision,” The Washington Post, January 16, 2018, https://www.washingtonpost.com/news/the-switch/wp/2018/01/16/more-than-20-states-are-suing-the-federal-communications-commission-over-its-net-neutrality-decision/ (accessed July 18, 2018).
[94] Human Rights Watch, “Free Speech,” topic, https://www.hrw.org/topic/free-speech.
[95] Human Rights Watch, “Defend Net Neutrality and Access to Information in US,” dispatch, August 10, 2017, https://www.hrw.org/news/2017/08/10/defend-net-neutrality-and-access-information-us.
[96] EME Homer City Generation, L.P. v. E.P.A., 696 F.3d 7 (D.C. Cir. Aug. 21, 2012).
[97] Ibid. at 11.
[98] E.P.A. v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014).
