Bench Memos

Law & the Courts

Adler: Kavanaugh “Evenhanded” in Matters of Administrative Law

Case Western University Law Professor Jonathan Adler has an op-ed in today’s New York Times detailing Judge Brett Kavanaugh’s vast experience in the area of administrative law, and his “willingness to discipline federal agencies when they go astray,” irrespective of the underlying policy issues implicated.

Adler notes that over one-third of the nearly 300 opinions that Judge Kavanaugh has authored over the last twelve years while sitting on the D.C. Circuit concern matters of administrative law, arising from litigation involving the various federal agencies.  Adler writes that the Supreme Court nominee’s opinions on the D.C. Circuit—“arguably the most influential court on matters of administrative law”— demonstrate “someone who takes administrative law principles to heart.”

Adler notes that, like President Trump’s first nominee to the Supreme Court, Justice Neil Gorsuch, “Judge Kavanaugh has expressed concerns about the Chevron doctrine, under which agencies’ interpretations of the statutes they administer may receive deference from courts.”  Like Gorsuch, “Kavanaugh believes that some courts have taken this doctrine too far and that where agency actions implicate matters of great economic or political significance, courts should pause before assuming Congress has delegated agencies power of such broad scope.”  Rather, Judge Kavanaugh once wrote that “policy is for Congress and the president to establish as they see fit in enacting statutes,” adding that the judiciary’s ‘more modest task’ is to ensure that ‘agencies comply with the law as it has been set by Congress.’”

Importantly, Adler explains that Kavanaugh’s concerns about the expansion of the administrative state are not driven by policy outcomes.  Citing to a forthcoming study examining the application of the Chevron doctrine by the lower courts, Adler observes, “Judge Kavanaugh is quite evenhanded, applying the same approach whether evaluating agency actions that could be characterized as liberal or conservative.”  With respect to the Trump Administration’s emphasis on deregulation, Adler believes that it is unlikely that a future “Justice Kavanaugh would give its initiatives an easy pass if the federal agencies in question do not do the work to demonstrate they are fulfilling their statutory and other legal obligations.”

It is this attribute—Judge Kavanaugh’s foremost dedication to the rule of law, irrespective of policy outcomes—that likens him to Justice Gorsuch, and will make Judge Kavanaugh an outstanding justice on the Supreme Court.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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