ISSUE BRIEF: Supreme Court Nominee Brett Kavanaugh: Will He Be Another Reliable Vote for Big Business?

After President Trump nominated Judge Brett Kavanaugh to fill the Supreme Court vacancy created by Justice Anthony Kennedy’s retirement, the White House “immediately played up [Judge Kavanaugh’s] pro-business, anti-regulation record.” In an email to supporters, the White House highlighted that “Judge Kavanaugh protects American businesses,” that he “helped kill President Obama’s most destructive new environmental rules,” and that he “led the effort to rein in . . . independent agencies . . . .” And in a memorandum to the press, the White House touted that Judge Kavanaugh had overruled federal agencies no less than 75 times in cases addressing clean air regulations, consumer protections, and a host of other issues.

In Brief

The Trump White House has highlighted that “Judge Kavanaugh protects American businesses" and touts that Kavanaugh has overruled federal agencies no less than 75 times in cases addressing clean air regulations, consumer protections, and other issues.
Many commentators have agreed that if confirmed, Judge Kavanaugh “could further cement the [high] court’s pro-business tilt.” One labor attorney warned, "It will be an uphill battle for employees to win many cases, if Judge Kavanaugh gets confirmed."
If Judge Kavanaugh is as friendly to business interests as the White House has promised, he would only reinforce the already pro-business majority on the Roberts Court, where the U.S. Chamber of Commerce has won more than 70% of its cases since 2006.

Summary

Many commentators have agreed that if confirmed, Judge Kavanaugh “could further cement the [high] court’s pro-business tilt.” For example, the New York Times editorial board opined that Judge Kavanaugh will “aggressively” give “big business a leg up on workers, unions, consumers and the environment.” One labor attorney warned: “This court will go from a reliably pro-business court to being solidly pro-business. It will be an uphill battle for employees to win many cases, if Judge Kavanaugh gets confirmed. He looks for ways to rule for employers.” In short, Judge Kavanaugh is widely believed to be “a friend of business.”

If Judge Kavanaugh is as friendly to business interests as the White House has promised, he would only reinforce the already pro-business majority at the Supreme Court. While corporations and business should certainly win their fair share of cases when the law is on their side, they fare disproportionately well at the Court, as exemplified by the increasing success of the U.S. Chamber of Commerce in its Supreme Court litigation. Since 2010, the Constitutional Accountability Center (CAC) has tracked the Supreme Court activities of the Chamber of Commerce and released empirical studies documenting a sharp increase in the Chamber’s success rate since the start of the Roberts Court. CAC has shown that the Chamber now wins the vast majority of its cases: 70% during the Roberts Court, compared to 56% during the late Rehnquist Court and 43% during the late Burger Court. Furthermore, there is a sharp ideological divide on the Roberts Court in favor of the Chamber, with the Court’s conservatives almost always ruling in favor of the Chamber in closely decided cases.

More from Federal Courts and Nominations