Supreme Court Nominee Kavanaugh's Past Rulings Signal Employer-Friendly Approach

Author: David B. Weisenfeld, XpertHR Legal Editor

July 10, 2018

Brett Kavanaugh will likely maintain the pro-employer approach of Supreme Court Justice Anthony Kennedy, whose impending vacancy he has been nominated to fill, should he be confirmed by the Senate.

Kavanaugh has served as a DC Circuit Court of Appeals judge since 2006 and authored opinions and dissents in cases involving hot-button employment issues. For instance, in Agri Processor v. NLRB, he wrote in dissent that a union election should have been voided because it was tainted by votes from undocumented workers who should not have been considered "employees" under the National Labor Relations Act.

In 2016, Judge Kavanaugh wrote for the DC Circuit in Verizon New England v. NLRB that "when a union and employer enter into a collective bargaining agreement, each party may waive certain rights they would otherwise possess." This includes, for example, the union members' right to picket. In addition, he has weighed in on the Affordable Care Act (ACA) in dissenting in Priests for Life v. HHS, siding with religious employers who claimed that requiring them to comply with the ACA's contraception mandate was too burdensome.

But while his record has favored employers, a New York Times story noted that Judge Kavanaugh has occasionally joined his DC Circuit colleagues in voting for employees. This includes a case reinstating a lawsuit against Fannie Mae, in which a black employee claimed his supervisor created a racially hostile workplace.

While a potential Justice Kavanaugh appears likely to be more conservative than his mentor, Justice Kennedy, it is worth pointing out that Justice Kennedy also generally voted for employers. However, Kennedy authored the Supreme Court's 2015 same-sex marriage decision in Obergefell v. Hodges. Thus, it is uncertain how much Kavanaugh would shift the Court - at least in the employment law realm. But he must first run the gauntlet of the Senate confirmation process.