Executive Council Statement | Labor Law

Supreme Court: Judge Brett Kavanaugh Is the Wrong Man for the Job

Judge Brett Kavanaugh, President Donald Trump’s nominee to replace Justice Anthony Kennedy on the U.S. Supreme Court, established a clear record on the U.S. Court of Appeals for the District of Columbia Circuit of protecting the privileges of the wealthy and powerful at the expense of working people. The Senate should reject his nomination and demand that the president nominate a judge who will restore balance to the most pro-corporate, anti-worker court in modern history.

Recent decisions by the Supreme Court, often the result of 5–4 votes, have a dramatic impact on the lives of working families and reinforce the importance of who is selected the next Supreme Court associate justice. Our current Supreme Court is one of the most pro-business in decades, siding with the privileged and powerful over working people whenever given the chance. For the 2017–2018 court term, the corporate community had a stunning 90% victory rate, its best record in six years.

The confirmation of Justice Neil Gorsuch restored the conservative five-justice majority on the Supreme Court, making this a “banner year” for corporate interests, according to the Constitutional Accountability Center, that was “marked by the consistency with which conservative justices voted to loosen the reins on corporate America.” With Kavanaugh’s nomination, the court is in position to eviscerate the rights and protections for working families in favor of corporate interests for generations to come.

This year, all Americans saw the culmination of a six-year campaign, initiated by a sitting justice and funded by corporate interests and dark money, when this pro-business Supreme Court ruled 5–4 in Janus v. AFSCME, Council 31, to disrupt 40 years of well-established law to rule against working people. As Justice Elena Kagan argued in her dissent, five justices, acting as “black-robed rulers overriding citizens’ choices,” prevented “the American people...from making important choices about workplace governance.” She continued: The court’s pro-business majority “weaponiz[ed] the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”

The court majority in Janus, eager to side with corporate interests over those of working people, flip-flopped on the meaning of the First Amendment. As Justice Kagan aptly observed: The First Amendment “was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.”

Kavanaugh is yet another pro-business “black-robed ruler” waiting to “override citizens’ choices.” The White House is touting Kavanaugh’s friendliness to corporate interests, saying he “protects American businesses from illegal job-killing regulations,” such as rules designed to keep workers healthy and safe on the job.

In SeaWorld of Florida, LLC v. Perez, Kavanaugh dissented from a majority opinion upholding a safety citation against SeaWorld after the death of a trainer who was working with a killer whale, which had previously killed three other trainers. While the majority deferred to the Occupational Safety and Health Review Commission’s finding that SeaWorld had insufficiently limited the trainers’ physical contact with the whales, Kavanaugh strongly disagreed, viewing the government’s role in protecting workers as “paternalistic.” Kavanaugh apparently lacks respect for the health and safety of workers who face hazards—sometimes deadly—on the job.

In American Federation Of Government Employees, AFL-CIO v. Gates, Kavanaugh authored the majority opinion that upheld as legal some Department of Defense regulations that a lower court had found would “entirely eviscerate collective bargaining.” Again, Kavanaugh sided against workers and their chosen representative, even though his opinion would allow the secretary of defense to “abolish collective bargaining altogether—a position with which even the secretary disagrees,” according to a judge who dissented on this point. The Washington Post called the DOD regulations “some of the most dramatic workplace changes planned for civil service employees in 30 years” that would “curb union rights at Defense and overhaul how the Department’s civilian employees are paid, promoted and disciplined.”

In Agri Processor Co., Inc. v. NLRB, Kavanaugh dissented from a decision that ordered a company to bargain with a union; he reasoned that the employees were ineligible to vote as undocumented immigrants. The majority opinion harshly criticized Kavanaugh’s “misreading” of both the plain-language of the National Labor Relations Act and clear Supreme Court precedent in Sure-Tan, Inc. v. NLRB, which held that undocumented immigrants are covered by the NLRA.

In NLRB v. CNN America, Inc., Kavanaugh dissented in part from the majority opinion that upheld a National Labor Relations Board order that CNN recognize and bargain with a worker’s union and CNN violated the NLRA by discriminating in hiring against union members. Kavanaugh’s position—that CNN was not a successor employer—would have denied workers’ recourse for their employer’s violation of the existing collective bargaining agreement.  

Kavanaugh not only denies the rights of workers for redress in court, but he promotes overturning well-established U.S. Supreme Court precedent that directs courts to defer to the expertise of federal agencies, thereby jeopardizing an entire body of rights and protections for workers. In PHH Corp. v. CFPB, Kavanaugh, who dissented from the en banc court decision, attacked the Consumer Financial Protection Bureau specifically, but all federal agencies generally: “The independent agencies collectively constitute, in effect, a headless fourth branch of the U.S. Government. They hold enormous power over the economic and social life of the United States. Because of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.”

According to one study, Kavanaugh has written 40 opinions finding agency action to be unlawful (and joined majority opinions reversing agency action in at least 35 additional cases). Workers and their families have every reason to fear Kavanaugh substituting his own judgement for the expertise of those in such federal agencies that protect and promote the rights of workers, such as the National Labor Relations Board, the Equal Employment Opportunity Commission, the Mine Safety and Health Commission, and the Occupational Safety and Health Commission.

Kavanaugh also believes a president can ignore judicial decisions and simply decide on his or her own, whether a law is constitutional. In Seven-Sky v. Holder, Kavanaugh reasoned in his dissent that the court lacked jurisdiction to determine the constitutionality of the Affordable Care Act. In so doing, he provided the following guidance to a president: “Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the president deems the statute unconstitutional.”

President Trump selected Kavanaugh from a list of 25 potential Supreme Court nominees dictated to him by the ultra-conservative Federalist Society and the anti-union Heritage Foundation. Corporate interests and dark money funders, which seek to gut the ability of all Americans to have accessible quality health care and deny workers their right to representation by unions, have provided their stamp of approval to this list. As one senator concluded: “Any judge on this list is fruit of a corrupt process straight from the D.C. swamp.”

The 2009 AFL-CIO Convention recognized in its adoption of Resolution 58 (Federal Judicial Appointments: A Call for the Restoration of Balance on the Federal Bench) that “[w]orking families have many rights protected by federal law. These include the right to form unions free from employer intimidation and retaliatory discharges; to be free from discrimination because of race, gender, national origin, age or disability in employment, education, health care, voting, housing, lending practices, criminal justice and other critical aspects of life in our society; to have a safe workplace; and to be paid for all hours worked.”

Working families deserve a Supreme Court that recognizes and respects our established legal rights. Any U.S. senator who believes Supreme Court justices should protect the rights of all Americans should reject this nomination and demand a nominee who will protect the rights of working families and uphold our constitutional values of liberty, equality and justice for all. Across the country, working people are organizing and taking collective action as we have not seen in years, and we will not stand for any politician who supports justices who put our rights at risk.