Kavanaugh Dissents on Abortion, Guns Likely to Face Scrutiny

U.S. Supreme Court nominee and Judge Brett M. Kavanaugh’s 300 opinions over more than 12 years on the bench will likely provide plenty of fodder for Senate Democrats.

Kavanaugh’s opponents are lining up in an attempt to block the nominee, who’s expected to move the court to the right if he replaces retiring Justice Anthony M. Kennedy.

“I will oppose Judge Kavanaugh’s nomination with everything I have, and I hope a bipartisan majority will do the same,” Sen. Chuck Schumer (D-N.Y.) pledged shortly after President Donald Trump announced the nominee.

Kavanaugh has written notable opinions involving hot-button issues like gun rights and abortion during his time at the U.S. Court of Appeals for the District of Columbia Circuit.

Kavanaugh is a fan of the originalist and textualist doctrine espoused by Justice Antonin Scalia, and could have an opportunity to make several of the conservative justice’s dissents become law.

He’s also shown an ability to influence the high court with his dissents that sided against the Environmental Protection Agency under President Barack Obama.

Abortion, Immigrant Teen

Kavanaugh dissented from the en banc D.C. Circuit’s decision in favor of a 17-year-old undocumented immigrant seeking an abortion, in 2017’s Garza v. Hargan.

The court vacated a panel ruling, which Kavanaugh joined, that required the detained teen to locate a “sponsor” to take custody of her before she could get an abortion.

Kavanaugh said that ruling followed the Supreme Court’s “many precedents” holding that the federal government “has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.”

The en banc majority’s ruling was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors” in federal detention “to obtain immediate abortion on demand,” Kavanaugh said.

D.C. Gun Ban

Kavanaugh also took issue with the D.C. Circuit’s decision upholding the district’s handgun registration requirement and ban on semi-automatic rifles, in 2011’s Heller v. District of Columbia.

Both provisions were unconstitutional under the Supreme Court’s 2008 ruling in District of Columbia v. Heller, which recognized the right of individuals to possess firearms, Kavanaugh’s dissent said.

The earlier Heller‘s protection of the right to own semi-automatic handguns logically extended to semi-automatic rifles, he said.

Further, gun registration hadn’t traditionally been required in the U.S. “and even today remains highly unusual,” he said.

CFPB Unconstitutional?

Kavanaugh suggested that the structure of the Consumer Financial Protection Bureau was unconstitutional, dissenting from the en banc D.C. Circuit’s ruling to the contrary earlier this year, in PHH Corp. v. Consumer Fin. Prot. Bureau.

Unlike other independent agencies, which are headed by multiple board members or commissioners, the CFPB has a single director who “wields enormous power over American businesses, American consumers, and the overall economy,” Kavanaugh said.

Yet that person is “unaccountable” to the president, violating the U.S. Constitution’s separation of powers, he said.

“Under Article II, an independent agency that exercises substantial executive power may not be headed by” one such director, he said.

The court should have given the president the ability to dismiss the bureau’s director at any time, which would allow the CFPB to function as an executive agency rather than an independent agency, Kavanaugh said.

The U.S. District Court for the Southern District of New York recently adopted much of Kavanaugh’s dissent, holding that the CFPB’s structure is unconstitutional, in Consumer Fin. Prot. Bureau v. RD Legal Funding, LLC.

The split created by that decision could pique the high court’s interest.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com