The Essential Judge Brett M. Kavanaugh Reader: What Cases Should You Read?

The Essential Judge Brett M. Kavanaugh Reader: What Cases Should You Read?

Legal Sidebari

The Essential Judge Brett M. Kavanaugh
Reader: What Cases Should You Read?
July 25, 2018

Judge Brett M. Kavanaugh, whom President Trump has nominated to fill the impending Supreme
Court vacancy caused by Justice Anthony M. Kennedy’s retirement from the Court, has amassed
a voluminous record of judicial writings during his legal career. These writings are certain to be a
key topic of interest as the Senate prepares to hold hearings and a possible vote on Judge
Kavanaugh’s nomination to the High Court. CRS has published a report, Judicial Opinions of
Judge Brett M. Kavanaugh, which provides a tabular listing of every judicial opinion authored
by Judge Kavanaugh during his time on the federal bench, briefly describing each opinion (and
the contrasting approach taken in any separate judicial opinion authored by another member of
the panel on which Judge Kavanaugh served) and the primary legal subject the ruling addresses.
While the report provides succinct descriptions of more than 300 judicial opinions authored by
Judge Kavanaugh (the overwhelming majority as part of a D.C. Circuit panel, though a handful
were authored as part of three-judge district court panels), some of the judicial opinions might be
particularly useful to Members, congressional committees, and staff seeking to better understand
Judge Kavanaugh’s approach to different subjects. The following table, adapted from the larger
report, highlights many of Judge Kavanaugh’s judicial opinions that have received the greatest
degree of attention from legal observers.

Area of Law
Case
Key Takeaway of Judge
Kavanaugh’s Opinion
Administrative Law
U.S. Telecom Ass’n v. FCC, 855 F.3d
Dissenting from denial of rehearing en

381 (D.C. Cir. 2017) (denying
banc: Federal Communications
rehearing en banc)
Commission lacked authority to issue
the “net neutrality” rule because
agencies may not issue regulations with
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vast economic and political significance
(i.e., major rules) without clear
congressional authorization. The net
neutrality rule was also invalid because
it violated the First Amendment rights
of Internet Service Providers to
exercise editorial discretion and
control over the content they carry.
SeaWorld of Fla., LLC v. Perez, 748
Dissenting: The Occupational Safety and
F.3d 1202 (D.C. Cir. 2014)
Health Review Commission decision to
cite Sea World for violating the
General Duty Clause of the
Occupational Safety and Health Act,
based on a determination that
SeaWorld employees’ interaction with
kil er whales was an employment
hazard, was arbitrary and capricious
and in excess of the agency’s statutory
authority.
In addition, Congress did not intend for
the agency to use the General Duty
Clause “to regulate and re-make some
undefined swath of America’s sports
and entertainment” industries, and thus
the agency lacked the authority to issue
the citation.
Ne. Hosp. Corp. v. Sebelius, 657 F.3d 1 Concurring in the judgment: The
(D.C. Cir. 2011)
interpretation by Health and Human
Services (HHS) of a statute governing
the proper methodology for calculating
certain Medicare reimbursement rates
contradicted the language of the
Medicare statute. This language,
contrary to the view of the majority,
was not ambiguous.

Business Law
Lorenzo v. Securities and Exchange
Dissenting: Banker should not be liable

Commission, 872 F.3d 578 (D.C. Cir.
under Securities and Exchange
2017), cert. granted, No. 17-1077, 2018
Commission Rule for the false
U.S. LEXIS 3813 (June 18, 2018)
statements because they were drafted
by his boss and sent at the direction of
his boss, negating the required element
of a wil ful intent to defraud.
United States v. Anthem, 855 F.3d 345
Dissenting: District court’s permanent
(D.C. Cir. 2017)
injunction against the merger of two of
the four major national health
insurance carriers was based on clear
factual error because the record
conclusively showed that the merger
would benefit consumers through
lower provider rates.
FTC v. Whole Foods Market, Inc., 548
Dissenting: The Federal Trade
F.3d 1028 (D.C. Cir. 2008)
Commission’s case against the merger
of grocery chains was from a bygone
era of antitrust enforcement. Because
the record failed to show that the
merged entity could exercise
meaningful market power, there was
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no sound basis on which to block the
merger.
Civil Rights Law
Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 Concurring: A single discriminatory act

(D.C. Cir. 2013)
could be sufficient to create a hostile
work environment under federal anti-
discrimination laws if that act was
sufficiently severe.
Ortiz-Diaz v. Dep’t of Hous. & Urban
Concurring: Because circuit precedent
Dev., Office of Inspector Gen., 867
holds that discriminatory transfers are
F.3d 70 (D.C. Cir. 2012)
ordinarily not actionable under Title
VII, the en banc court should resolve
the uncertainty and hold that all
discriminatory transfers, or denials of
transfers, are actionable.
South Carolina v. United States, 898 F.
Majority: South Carolina’s voter
Supp. 2d 30 (D.D.C. 2012)
identification law satisfied the federal
Voting Rights Act’s preclearance
requirements with respect to elections
beginning in 2013, but not with respect
to the 2012 elections because the state
law could not be properly implemented
in time to ensure it did not have
retrogressive effects.
Criminal Law & Procedure
United States v. Askew, 529 F.3d 1119
Dissenting: Police officer who unzipped

(D.C. Cir. 2013) (en banc)
a criminal suspect’s jacket did not
engage in an unlawful search. Such
action was an objectively reasonable
protective step to ensure officer safety,
and police may permissibly maneuver a
suspect’s outer clothing when doing so
would help facilitate the witness’s
identification.

United States v. Burwell, 690 F.3d 500
Dissenting (Kavanaugh, J.): The majority
(D.C. Cir. 2012) (en banc)
erred in concluding that a 30-year
minimum sentence attached to a
person who committed a crime of
violence carrying a machine gun
regardless of whether the person was
aware the firearm was an automatic
weapon. The presumption of a mens
rea requirement should have applied to
each element of the offense, and the
automatic character of the gun was an
element of the crime at issue.
United States v. Jones, 625 F.3d 766
Dissenting from denial of rehearing en
(D.C. Cir. 2010) (denying rehearing en
banc: After a three-judge panel ruled
banc)
that the warrantless use of a Global
Positioning System (GPS) device by
police to track a suspect’s vehicle for
several weeks was unreasonable under
the Fourth Amendment, the en banc
court should have reconsidered the
panel’s novel aggregation approach to
Fourth Amendment searches, as well as
whether the police, by touching and
manipulating the outside of the
defendant’s car to install the GPS
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tracking device, physically encroached
“within a constitutionally protected
area.”
Environmental Law
White Stallion Energy Ctr., LLC v. EPA, Dissenting: EPA acted unreasonably and

748 F.3d 1222 (D.C. Cir. 2014), rev’d,
outside of its authority when it failed to
Michigan v. EPA, 135 S. Ct. 2699
consider the costs of regulating power
(2015)
plants in determining that it was
appropriate to set new emissions
standards.
EME Homer City Generation, LP v.
Majority: The sulfur dioxide and
EPA, 696 F.3d 7(D.C. Cir. 2012),
nitrogen oxide emissions budgets
rev’d and remanded, EPA v. EME Homer under EPA’s Cross-State Air Pol ution
City Generation, LP, 134 S. Ct. 1584
Rule were invalid, as they required
(2014)
petitioner-states “to reduce emissions
by more than the amount necessary to
achieve attainment in every downwind
State to which it is linked,” and the
budgets were remanded without
vacatur to EPA for the agency’s
reconsideration. However, petitioner’s
various facial challenges to the Rule
were denied, as EPA had authority to
promulgate the Rule’s Federal
Implementation Plans.
Coal. for Responsible Regulation, Inc.
Dissenting from the denial of rehearing en
v. EPA, Nos. 09-1322 et al., 2012 U.S.
banc: Case should be reheard en banc
App. LEXIS 25997 (Dec. 20, 2012)
because the panel incorrectly
(denying rehearing en banc)
concluded that EPA’s interpretation of
the term “air pol utants” as including
greenhouse gases in the context of the
Prevention of Significant Deterioration
Program was not grounded in statute
and was legally impermissible.
Freedom of Religion
Priests for Life v. HHS, 808 F.3d 1
Dissenting from the denial of rehearing en

(D.C. Cir. 2015) (denying rehearing en
banc: HHS regulations violated the
banc)
Religious Freedom and Restoration Act
because they substantially burdened
plaintiff religious organizations’ exercise
of religion by requiring them to submit
a form notifying employees that they
had opted out of providing
contraceptive coverage and identifying
or notifying their insurers. Although
the government has a compelling
interest in facilitating access to
contraception, it did not employ the
least restrictive means of furthering
that interest.
Newdow v. Roberts, 603 F.3d 1002
Concurring in the judgment: The plaintiffs
(D.C. Cir. 2010)
had standing to challenge the
presidential oath and inaugural prayers
because they pled a sufficiently
concrete, particularized, and
redressable injury under the
Establishment Clause that could be
traced to the defendants. The
Establishment Clause allowed the use
of “so help me God” in concluding the
official presidential oath as well as the
court’s invocation, “God save the
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United States and this honorable
Court.”
Freedom of Speech
Bluman v. FEC , 800 F. Supp. 2d 281
Majority: A provision of the Bipartisan

(D.D.C. 2011), aff’d, 565 U.S. 1104
Campaign Reform Act prohibiting
(2012)
certain foreign nationals from making
political contributions did not violate
the First Amendment.
Cablevision Sys. Corp. v. FCC, 597
Dissenting: The FCC’s exclusivity rule,
F.3d 1306 (D.C. Cir. 2010)
allowing the continuation of a
prohibition against exclusive contracts
between cable operators and cable
affiliated programming networks, was
no longer necessary to further
competition and, therefore, no longer
met intermediate scrutiny as required
of a content-neutral restriction on
editorial and speech rights. The rule
therefore violated the First
Amendment and, as a result, the Cable
Act as well.
Republican Nat’l Committee v. FEC,
Majority: A provision of the Bipartisan
698 F. Supp. 2d 150 (D.D.C. 2010),
Campaign Reform Act limiting the
aff’d, 561 U.S. 1040 (2010)
receipt and spending of “soft money”
by national political parties did not
violate the First Amendment.
Health Care
Seven-Sky v. Holder, 661 F.3d 1 (D.C.
Dissenting as to jurisdiction: In a challenge
Cir. 2011), abrogated by Nat’l Fed’n of
to the “individual mandate” of the
Indep. Bus. v. Sebelius, 567 U.S. 519
Affordable Care Act, contending that
(2012)
the Anti-Injunction Act deprived the

court of jurisdiction prior to
enforcement because the plaintiffs’
constitutional challenge, if successful,
would prevent the IRS from assessing
or col ecting tax penalties from citizens
who do not have health insurance
required by the individual mandate.
National Security
Klayman v. Obama, 805 F.3d 1148
Concurring in the denial of rehearing en

(D.C. Cir. 2015) (denying rehearing en
banc: The Fourth Amendment does not
banc)
bar the government’s bulk col ection of
telephony metadata for national
security reasons.
Hamdan v. United States, 696 F.3d
Majority: Conviction of Guantanamo
1238 (D.C. Cir. 2012), overruled by Al
detainee under the Military
Bahlul v. United States, 767 F.3d 1
Commission Act of 2006 for providing
(D.C. Cir. 2014)
material support to terrorism was
vacated because the crime of material
support did not exist as a war crime
under international law at the time the
relevant conduct occurred.
Rattigan v. Holder, 689 F.3d 764 (D.C.
Dissenting: Under Supreme Court
Cir. 2012)
precedent, federal agencies’ security
clearance decisions, including reports
or referrals to the FBI, were not
judicially reviewable.
Second Amendment
Heller v. Dist. of Columbia, 670 F.3d
Dissenting: Courts should assess gun
1244 (D.C. Cir. 2011)
bans and regulations based on the
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Constitution’s text, history, and
tradition rather than by a balancing
test, such as strict or intermediate
scrutiny. The District of Columbia’s
requirement for registration of all
lawful y possessed guns and its ban on
most semi-automatic rifles violated the
Second Amendment.
Separation of Powers
PHH Corp. v. CFPB, 839 F.3d 1 (D.C.
Majority: The structure of the

Cir. 2017), vacated en banc, 881 F.3d 75 independent Consumer Financial
(D.C. Cir. 2018)
Protection Bureau violated Article II of
the Constitution as the agency’s single

director was not removable by the
President at wil .
In re Aiken County, 725 F.3d 255 (D.C. Majority: Where previously
Cir. 2013)
appropriated money was available to
the Nuclear Regulatory Commission
(NRC) to perform statutorily
mandated licensing processes for
storage of nuclear waste in Yucca
Mountain, the agency could not ignore
its statutory mandates simply because
Congress had not appropriated al of
the money necessary to complete the
project. NRC had not asserted that the
mandate was unconstitutional, and the
executive’s prosecutorial discretion
under Article II does not include the
power to disregard statutory
obligations imposed by Congress.
Free Enter. Fund v. Pub. Co.
Dissenting: The Public Company
Accounting Oversight Bd., 537 F.3d
Accounting Oversight Board created
667 (D.C. Cir. 2008), aff’d in part, rev’d
under the Sarbanes-Oxley Act violated
in part, 561 U.S. 477 (2010)
separation of powers principles
because neither the President nor a
presidential “alter ego” possessed any
power to remove Board members.
Additionally, Board members were not
“inferior officers” given their functions
and independence, and accordingly
their appointment without Senate
confirmation violated the
Appointments Clause.
Substantive Due Process
Garza v. Hargan, 874 F.3d 735 (D.C.
Dissenting: An undue burden was not
Cir. 2017) (en banc), cert. granted and
placed on an unlawful y present alien
vacated as moot, Azar v. Garza,138 S.
minor’s ability to seek an abortion
Ct. 1790 (2018)
when HHS, which held the minor in
custody, sought to expeditiously
transfer her to an immigration sponsor
before the minor would be permitted
to make the decision to obtain an
abortion.

CRS is preparing a new report that will provide an in-depth analysis of Judge Kavanaugh’s
approach to legal issues and the potential consequences he might have, if confirmed, upon the
Supreme Court. Key CRS products related to the Supreme Court vacancy and Judge
Kavanaugh’s nomination are collected in CRS Legal Sidebar LSB10160, Supreme Court
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Nomination: CRS Products, by Andrew Nolan. CRS personnel can also provide briefings and
other assistance related to the Supreme Court nomination to congressional clients upon request.

Author Information

Michael John Garcia

Acting Section Research Manager

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
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