Federal Courts and Nominations

RELEASE: New Analysis: President Trump Has Good Reason to Expect Judge Kavanaugh to “Protect” Big Business at the Supreme Court

“What we discovered,” said CAC President Elizabeth Wydra, “is that the Trump White House’s conclusion is well-founded.”

WASHINGTON—Constitutional Accountability Center today continued its long-running analysis of how big business fares at the U.S. Supreme Court with an examination of Judge Brett Kavanaugh, President Trump’s nominee to replace Justice Anthony Kennedy, and Kavanaugh’s record in business cases as a judge on the U.S. Court of Appeals for the D.C. Circuit. On the day of Judge Kavanaugh’s nomination, President Trump’s White House boasted that “Judge Kavanaugh protects American businesses.” CAC decided to test that claim.

Read CAC’s analysis of Judge Kavanaugh’s record in cases affecting big businesses here.

“What we discovered,” said CAC President Elizabeth Wydra, “is that the Trump White House’s conclusion is well-founded. Even when the law indicates otherwise, Judge Kavanaugh’s record indicates a pro-corporate bent at the expense of workers, consumers, the environment, and government’s ability to protect the American people from bad corporate behavior in case after case. If Senators confirm Judge Kavanaugh to replace Justice Kennedy, we can expect the Roberts Court’s already historic support for corporate interests over all Americans to skyrocket.”

CAC’s analysis covers seven areas: Workers’ Rights and the National Labor Relations Board; Employees and Workplace Protections; Independent Agencies; Chevron Deference and the Government’s Ability to Regulate; Environmental Regulations; Multinational Corporate Liability; and Competition in the Marketplace. In sum, CAC Appellate Counsel Ashwin Phatak, author of the analysis released today, concludes:

Across these different issue areas, a common theme emerges: Judge Kavanaugh routinely sides with businesses and employers, and against the government, interest groups, employees, and consumers. Moreover, he has often done so in dissent, staking out positions that his colleagues—sometimes even conservative colleagues—were unwilling to join. Thus, Judge Kavanaugh has demonstrated a pro-business jurisprudence that is often outside the mainstream of the appellate court on which he currently serves.

Spanning nearly three dozen opinions, including occasional exceptions where Judge Kavanaugh bucked his pro-corporate bent, CAC provides an essential window into a critical portion of Judge Kavanaugh’s judicial record as Senators evaluate the suitability of President Trump’s second nominee to win a lifetime appointment on the U.S. Supreme Court.



“Business looks to Kavanaugh to extend Supreme Court hot streak,” Politico, August 15, 2018: https://www.politico.com/story/2018/08/15/kavanaugh-business-supreme-court-confirm-777515

CAC Issue Brief, “Supreme Court Nominee Brett Kavanaugh: Will He Be Another Reliable Vote for Big Business?” Ashwin P. Phatak, August 15, 2018: https://www.theusconstitution.org/wp-content/uploads/2018/08/CAC-Kavanaugh-Business.pdf

“Corporations and the Supreme Court,” CAC’s running analysis of the performance of the U.S. Chamber of Commerce at Supreme Court (2010-2018) https://www.theusconstitution.org/series/chamber-study/

“A Banner Year for Business as the Supreme Court’s Conservative Majority Is Restored | October Term 2017,” Brian R. Frazelle, July 17, 2018: https://www.theusconstitution.org/think_tank/a-banner-year-for-business-as-the-supreme-courts-conservative-majority-is-restored/

CAC voter poll results on the courts and the Constitution (nearly half of voters say the Supreme Court treats corporations more favorably than individuals), September 2017: https://www.theusconstitution.org/wp-content/uploads/2018/07/CAC-Mellman-Courts-Constitution-Poll-9-2017.pdf#page=4

“Brett Kavanaugh Will Fit Right In at the Pro-Corporate Roberts Court,” New York Times Editorial (citing CAC’s work), July 22, 2018: https://www.nytimes.com/2018/07/22/opinion/brett-kavanaugh-supreme-court.html


Now in our tenth year, Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit the new CAC website at www.theusconstitution.org.


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