Since the departure of Justice Sandra Day O’Connor in 2005, Justice Anthony Kennedy has been considered the “swing” vote in cases of great moment, and focusing on—at times, obsessing over—how he would see the law became an oft-repeated ritual each term. But no longer will all eyes be on Justice Kennedy. With the nomination and anticipated confirmation of Judge Brett Kavanaugh as the next justice, our attention will shift to the most junior member of the Court. While much of what we have seen in the media seems to focus on whether or not Judge Kavanaugh would vote to overturn Roe v. Wade, Judge Kavanaugh’s jurisprudence and legal philosophy reflect that he likely will have a considerable impact on the financial services and banking industries—particularly with respect to the federal administrative state, which governs so much of the economy via regulations.
We begin, though, with a bit of background on the man. Born and raised in Washington, D.C., Judge Kavanaugh graduated from Yale University and Yale Law School. In the early 1990s, he began his legal career serving as a law clerk to three different federal judges: first, Judge Walter Stapleton, a court of appeals judge based in Delaware; next, Judge Alex Kozinski, a court of appeals judge based in California; and finally, Justice Kennedy himself. Readers who tune in to Judge Kavanaugh’s hearing before the Senate, which is set to begin on September 4, likely will hear some questioning related to Judge Kavanaugh’s year as a law clerk to Judge Kozinski, who was forced to resign in 2017 in the face of reports of sexual misconduct. There is not, to my knowledge, a shred of evidence that Judge Kavanaugh had any knowledge of Judge Kozinski’s disgraceful conduct; nevertheless, the subject surely will be of interest to certain senators.
During the Clinton Administration, Judge Kavanaugh spent several years in the Office of Independent Counsel under Kenneth Starr. After a brief stint in private practice, Judge Kavanaugh returned to the government, serving as President George W. Bush’s Staff Secretary from 2003 until 2006 when he was nominated to the U.S. Court of Appeals for the District of Columbia. The “D.C. Circuit,” as it is known, is widely regarded as the nation’s second most important court, in part because it hears a high number of cases involving challenges to federal regulations and federal administrative actions. The D.C. Circuit thus set the stage for the development of a fundamental piece of Judge Kavanaugh’s jurisprudence: a robust skepticism for the concentration of power in the federal administrative state.
According to an essay written by one of his former law clerks and published by the Yale Journal on Regulation, Judge Kavanaugh has written 40 opinions finding federal agency action to be unlawful and has joined majority opinions reversing agency action in at least 35 additional cases. The core tenets of the philosophy that has led Judge Kavanaugh to these opinions are (1) the separation of powers and (2) the supremacy of the statutory text. The business community, on balance, appreciates judges who adhere to these principles, which I discuss briefly below.
Judge Kavanaugh believes in a firm separation of powers. In his most high-profile agency opinion, which came in a case challenging the authority of the Consumer Financial Protection Bureau, he wrote: “To prevent tyranny and protect individual liberty, the Framers of the Constitution separated the legislative, executive, and judicial powers of the new national government.” Judge Kavanaugh knows that this system of checks and balances falls apart when we allow massive federal agencies to accrue the power to make the law (a legislative function), enforce the law (an executive function), and decide what the law means (a judicial function). Thus, Judge Kavanaugh was of the view that the concentration of unchecked power in the Director of the CFPB—i.e., the exclusive power to “decide what rules to issue,” “how to enforce, when to enforce, and against whom to enforce the law,” and “whether an individual or entity has violated the law”—was constitutionally infirm. Although Judge Kavanaugh’s view ultimately was rejected by the full D.C. Circuit, his legal reasoning in the case remains highly influential as courts in other jurisdictions around the country consider similar issues in connection with the CFPB. Preventing the consolidation of powers in unitary agencies not only is a constitutional prerogative for judges, it also is favorable for the economy if you, like many others in the business community, believe that the financial services and banking sectors are already over-regulated.
Judge Kavanaugh also is a devotee of “textualism,” the straightforward interpretative method under which judges recognize the text of the law—and only the text—as the law. This principle comes into play frequently in the regulatory context. For example, if an agency promulgates a rule or initiates an enforcement action premised on an expansive or liberal interpretation of the law, a judge who strictly adheres to the text of the law, like Judge Kavanaugh, is more likely to find the agency’s actions unlawful. Agencies have only that power which Congress specifically has granted them through enacting laws, and agencies’ efforts to expand their powers have been thwarted by textualists like Judge Kavanaugh. Textualist judges thus allow members of the business community to rely with confidence on the meaning of the law and to order their affairs in accordance with that meaning, without fear that the law will be stretched beyond the text.
People have debated and will continue to debate Judge Kavanaugh’s views on abortion, gun rights, same-sex marriage, and other hot-button issues. There will never be a judge acceptable to everyone on those issues, and this post isn’t about who’s right and who’s wrong on those issues. This post is about Judge Kavanaugh and an —or over-reach. This approach demands that our federal government maintain and respect the separation of powers and requires our federal agencies to stay within the confines of the text of the law. Judge Kavanaugh is impressive on that front.
Charles W. Prueter is a trial and appellate lawyer at Waller Lansden Dortch & Davis, LLP, in Birmingham. He can be reached by email at charles.prueter@wallerlaw.com. Susan Truss Prueter, Esq., also assisted in drafting this post.
