Kavanaugh Watch: Bad Forecast for Worker and Environmental Protections

KavanaughAnd in our continuing series of posts about why Brett Kavanaugh’s appointment to the Supreme Court would be a disaster for workers:

  • The San Francisco Chronicle reviews Kavanaugh’s dissent in the SeaWorld case that we wrote about last week (here). Bob Egelco writes that “The appeals court ruling in SeaWorld vs. Perez stands as an illustration of Kavanaugh’s approach to issues such as government regulation of the workplace and the limited degree of deference courts owe to regulatory agencies.”  And he quotes Jordan Barab saying that Kavanaugh’s dissent “seems consistent with a very anti-regulatory, pro-corporate philosophy, a feeling that workers should assume the risk.”
  • Washington Post columnist Steve Pearlstein says that Democrats should be less worried about a vote against  Roe v. Wade, and more concerned about him trashing Chevron v. Natural Resources Defense Council, which tells the courts to defer to the reasonable judgment of the agency when a law passed by Congress “is silent or ambiguous on an issue of how an agency should exercise its regulatory authority.”

Kavanaugh’s previous decisions related to regulatory issues have one thing in common: an intellectual dishonesty and legal sophistry that allows Kavanaugh to overlook inconvenient facts or legal precedents as he cleverly weaves his detailed and otherwise reasonable sounding tales of regulatory overreach and ineptitude. As a judge, he demonstrates a willful ignorance of the challenge of modernizing laws in an era of political gridlock, polarization and dysfunction, and a stubborn refusal to consider the difficulty of fashioning workable regulations in a complex, fast-changing economy.”

Pearlstein concludes that Kavanaugh will complete the 30-year judicial assault on business regulation by Republicans & business interests making it impossible in the future to enact new environmental, consumer or workplace protections.

  • The New York Times continues that theme with a story about how Kavanaugh’s father, a top drug industry lobbyist “may shed light on his son’s hostility to government regulation, a major reason conservatives are so enthralled by his nomination to the Supreme Court.” Republicans and their business backers are salivating at the prospect that Kavanaugh’s ascension to the high court “will cement a solid pro-business majority on the nation’s highest court, advancing Mr. Trump’s aim of dismantling the regulatory state, liberating industry from what he sees as burdensome rules. With critical battles over the environment and consumer protection headed for the courts, his ascent would likely achieve for industry incomparably more than all his father’s years of lobbying.”  We can hardly wait.
  • Amanda Reilly at E&E News discusses Kavanaugh’s  favorable views of cost-benefit analysis, even though previous courts had decided that “EPA could not take costs into account when setting public health standards under the Clean Air Act’s National Ambient Air Quality Standards program.”  Former Supreme Court Justice Antonin Scalia wrote an opinion throwing out an EPA regulation that sounded strikingly similar to a dissenting opinion that Kavanaugh had written.  Environmentalists are worried.  “Kavanaugh is going to use cost … everywhere and anywhere he can to strike down EPA’s authority to regulate,” said Patrick Gallagher, the Sierra Club’s legal director.
Deconstructing the Administrative State Supreme Court

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