The president has nominated the Washington, D.C. judge for the bench.
July 10, 2018 4 min read
President Donald Trump announced his pick for the vacant seat on the Supreme Court bench Monday night. After leading the room in applause for Justice Anthony Kennedy, who announced his retirement in late June, Trump invited Judge Brett Kavanaugh to enter with his wife and two daughters, lauding him as a “judge’s judge.”
Kavanaugh, 53, attributed his interest in law to his prosecutor mother. “Her trademark line was, ‘Use your common sense. What rings true? What rings false?’” Kavanaugh said. “That’s good advice for a juror and for a son.”
The nomination was met with approval in some circles but also widespread controversy due to some of Kavanaugh’s past opinions. For example, on presidential authority, Kavanaugh wrote in 2009 that “Congress might consider a law exempting a President — while in office — from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel,” while noting that impeachment could remain an option in extreme cases.
What’s more, Kennedy was a swing vote when it came to abortion rights, so activists worry Kavanaugh could have a hand in overturning Roe v. Wade, the 1973 Supreme Court ruling that legalized abortion across the U.S. On the subject of environmental protections, Kavanaugh wrote in 2012: “It is not our job to set environmental policy. Our limited but important role is to independently ensure that the agency stays within the boundaries Congress has set. EPA did not do so here.”
As for how this nomination could affect business on the whole? During Trump’s nomination ceremony on Monday, industry stakeholders received a document from the White House touting Kavanaugh’s history of supporting deregulation — including 75 times the judge has overruled federal regulators — and the idea that he “protects American businesses from illegal job-killing regulation,” Politico reported.
Issue by issue, here’s what entrepreneurs should know about Kavanaugh’s decisions on business.
On net neutrality
In a 2017 dissent, Kavanaugh wrote that net neutrality — rules prohibiting internet service providers (ISPs) from prioritizing some types of internet traffic and content — is unlawful. The FCC relied on the 1934 Communications Act to pass the net neutrality rule, and Kavanaugh wrote that that piece of legislation doesn’t supply the appropriate authorization for the FCC to pass such a rule. Kavanaugh also argued that net neutrality infringes on ISPs’ “editorial discretion,” thereby violating the providers’ First Amendment rights. For entrepreneurs, this means the likelihood of net neutrality being reinstated is likely slim — meaning that in the coming months, they could face competition with larger companies for “paid prioritization” of their websites or content.
On religious liberty
When it comes to the issue of religious liberty for business owners, Kavanaugh skews conservative but seems to be a bit of a wild card. In a case stemming from the Affordable Care Act’s “contraceptive mandate,” Kavanaugh wrote in his dissent that such regulations can burden a religious organization’s exercise of its beliefs by requiring those in charge to take action contrary to those beliefs. In another line, however, he wrote that precedent suggests the government has a “compelling interest” in making contraception available to employees of such religious organizations. The issue is especially relevant after the recent Supreme Court decision to allow a Colorado baker to refuse service to a same-sex couple. Depending on an entrepreneur’s religious beliefs, Kavanaugh’s potential decisions on the subject could affect their future business.
On financial oversight
In 2016, Kavanaugh wrote that the Consumer Financial Protection Bureau (CFPB), an independent agency aiming to protect consumers from financial crises, was “unconstitutionally structured” in awarding too much power to one “unchecked” director. Kavanaugh said he viewed independent agencies essentially as a “headless fourth branch” of the government. The CFPB is known to have a hand in regulating banks, credit unions, payday lenders and more. A decision to disband the bureau could especially affect entrepreneurs, who often require large amounts of capital to launch and maintain their businesses.