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What Brett Kavanaugh Means for States

The Supreme Court nominee's legal vision could empower state governments on some issues but imperil their laws on others.

Brett Kavanaugh
Brett Kavanaugh speaking before the Senate Judiciary Committee on Capitol Hill on Tuesday.
(AP/Andrew Harnik)
The American Legislative Exchange Council couldn’t be more excited about Brett Kavanaugh.

The conservative group sent a letter from more than 300 state legislators to the United States Senate last month, urging the “swift confirmation” of President Donald Trump’s latest Supreme Court nominee, currently a judge on the D.C. Circuit Court of Appeals. Citing their own fidelity to “limited government, free markets and federalism,” the lawmakers wrote, “State legislators dedicated to small government and freedom believe Judge Kavanaugh is the single most qualified person in the country to serve on the Supreme Court.”

This enthusiasm is understandable. Kavanaugh, whose Senate confirmation hearings began today, is expected to move the Supreme Court's majority to the right for at least a generation. His skepticism of federal authority could empower state and local governments -- except when their policies violate his interpretation of the U.S. Constitution.

Kavanaugh is viewed by many legal experts as a "textualist," applying the law narrowly "as written," or as an "originalist," applying the law consistent with its original intent.

“If we get a textualist, originalist justice, then we're likely to get a judge who thinks federalism is important, and that means someone who thinks diversity among the 50 states is a part of our constitutional structure," says Randy Barnett, a Georgetown Law professor. This could mean "an increased reigning in of one-size-fits-all federal policies," he adds.

President Trump nominated Kavanaugh in July to replace retiring Justice Anthony Kennedy, a moderate conservative and pivotal swing vote for whom Kavanaugh once clerked. On the D.C. Circuit, Kavanaugh has rarely heard cases pertaining to state and local issues, according to a recent analysis by Max Hamilton and Lisa Soronen of the State and Local Legal Center. But Hamilton and Soronen did find “potential clues” about how Kavanaugh might rule.

His Fourth Amendment cases -- those involving searches and seizures by the government -- “indicate that he would give law enforcement leeway,” they wrote.

On the First Amendment, “he may be willing to strike down state laws and local ordinances which restrict speech.” But his interpretation of speech is controversial. He believes, for instance, that net neutrality violates the free speech rights of internet service providers.

The State and Local Legal Center also notes that Kavanaugh typically sides with employers, and “conservative Justices tend to be skeptical of state and local government regulation of private property.”

Kavanaugh’s record shows he is skeptical of the so-called administrative state, which might make him more likely to strike down federal environmental regulations that the Trump administration is seeking to undo.

One issue where Kavanaugh might be less likely than Kennedy to defer to states is gun rights. He dissented from a number of D.C. Circuit rulings that upheld state or local gun restrictions. The Supreme Court has declined to address gun control cases in recent years, exercising the Reagan-era tradition of judicial restraint. But Kavanaugh, as part of a more conservative majority, might vote to take up cases that could strike down bans on semiautomatic weapons -- and on carrying concealed guns -- in liberal states.

This week’s confirmation hearings will undoubtedly address another hot-button issue with implications for states: abortion. As a candidate, President Trump said he would appoint justices who would overturn Roe v. Wade, the 1973 Supreme Court opinion that legalized the practice.

"If we put another two or perhaps three justices on, that will happen,” he said during a 2016 debate with his Democratic opponent, Hillary Clinton. “And that will happen automatically, in my opinion, because I am putting pro-life justices on the court."

Kavanaugh reportedly said Roe v. Wade is "settled law" but has dissented in rulings that eased abortion access.

Barring a disastrous performance at his hearings or damaging new revelations about his past, Kavanaugh is expected to be confirmed and would mark Trump's second appointment to the Supreme Court. The Senate confirmed his first appointment, conservative Justice Neil Gorsuch, last year following the death of Justice Antonin Scalia in 2016. President Barack Obama initially nominated Merrick Garland to replace Scalia, but Republicans blocked him from even having a hearing on Capitol Hill.

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