Judge Brett Kavanaugh will likely have his confirmation hearing in the near future. The media has spent many news cycles and think pieces addressing hot-button topics including his views on Roe v. Wade, Obergefell v. Hodges, and investigations into the Executive Branch. These are all important issues, but for the sake of this blog, we care about how he will rule on labor- and employment-related matters.
The Supreme Court that Justice Kennedy is leaving is one that delivered two incredibly favorable decisions to employers in the 2018 season. The first was Epic Systems Corp. v. Lewis, which ruled that workers had to abide by arbitration agreements, and that such provisions did not violate the collective bargain rights of the National Labor Relations Act. The second was Janus v. AFSCME, which ruled that public-sector unions could not require fair share fees from workers who did not wish to join the union.
Although appointed by President Reagan, Justice Kennedy often reflected the swing vote on key issues, and joined decisions that did not align with his more conservative colleagues. He was in the majority for Epic and Janus, but he also wrote the majority decision in Obergefell v. Hodges. As Judge Kavanaugh has served on the D.C. Circuit since 2006, we have some window into how he decides cases. Judge Kavanaugh was also Justice Kennedy’s law clerk, and Politico reports that the Justice was comfortable stepping down knowing Judge Kavanaugh would be nominated to fill his spot. So with all that said, let’s dive into some of his cases.
The Chicago Tribune reported that Judge Kavanaugh was not a friend to working families or to employees who had suffered discrimination. The New York Times reported that shortly after President Trump made his announcement nominating Judge Kavanaugh, the White House circulated a memo to business leaders that touted the nominee’s pro-business rulings in his time on the bench. “Judge Kavanaugh protects American businesses from illegal job-killing regulations,” the memo reportedly said.
It is important to note, however, that Judge Kavanaugh’s pro-business stance is not a truth universally acknowledged. Robin Shea provides several examples of cases that Judge Kavanaugh ruled on that show a more nuanced justice.
The case of Ayissi-Etoh v. Fannie Mae (2013) serves as an interesting example. The case was decided by a three-judge panel in the 9th Circuit (interestingly enough, the Chief Judge for the case was President Obama’s Supreme Court pick, Merrick Garland). Judge Kavanaugh wrote a separate concurrence to the opinion to “underscore an important point” about Ayissi-Etoh’s claim. He draws on Langston Hughes, Harper Lee, and the 4th Circuit Case Spriggs v. Diamond Auto Glass to emphasize his point that Ayissi-Etoh’s claim that he was called the “n-word” by his supervisor, “suffices by itself to establish a racially hostile work environment,” and that that is, “‘probably the most offensive word in English.’”
In Local 58 of the International Brotherhood of Electrical Workers v. NLRB (2018) he enforced the NLRB’s decision to deny the Detroit-based IBEW Local’s new policy. The policy in question required union members to come to the office in person with a photo ID and a written request to resign or end union dues payments.
On the other hand, he partially concurred and partially dissented on the case of Midwest Division-MMC, LLC v. NLRB (2017). He concurred with his peers that the employees in question did not have a right to a union representative when going through interviews with their nursing peer review committee, as the interviews were not investigations or disciplinary. But where the rest of the panel found that the employer should have given the union information regarding the interview process, Judge Kavanaugh felt that the need for confidentiality superseded the union’s need to be informed about a process that impacted its members but did not relate to discipline.
We should expect that whoever is confirmed to Justice Kennedy’s seat, he or she will face difficult questions on the cutting edge of labor and employment law, including issues impacting women’s rights in the workplace, the place of LGBTQ individuals under our federal anti-discrimination laws, and the duties of employers with regard to temporary workers and independent contractors. For the time being, the most we can do is speculate. But one thing should be emphasized: the U.S. Supreme Court is a venerable institution, which earnestly endeavors to reach just and lawful decisions. While any appointee merits careful scrutiny, it should be expected that any justice confirmed to fill Justice Kennedy’s seat will live up to the highest ideals of our judicial system.