In the week since President Trump announced his plans to nominate Brett Kavanaugh as an associate justice of the Supreme Court, replacing Justice Anthony Kennedy, who is retiring, legal scholars and academics have pored through Judge Kavanaugh’s rulings to try and get a feeling for where he will stand should his nomination be confirmed.
Kavanaugh has spent the past 12 years as a judge on the Court of Appeals for the D.C Circuit, which mostly deals with regulatory issues — see his anti-love letter missives on the Bureau of Consumer Financial Protection, for example — but there have been a handful of class action rulings that he has been involved with, and it may provide some insight into how he will rule on the Supreme Court.
There was a Telephone Consumer Protection Act case in which Kavanaugh ruled against the Federal Communications Commission, after it accused an individual of breaking a rule by sending solicited faxes without an opt-out notice.
“It is the Judiciary’s job to respect the line drawn by Congress, not redraw it as we might think best,” Kavanaugh wrote in his ruling in his 2017 ruling in Bais Yaakov of Spring Valley v. FCC, according to a published report.
Experts pointed to a dissenting opinion Kavanaugh wrote in a 2011 class-action ruling, in which he chastised the plaintiffs and perhaps displayed some pro-business leanings.
“Some of his opinions, in this area, however reflect a view that plaintiffs are better off pursuing individual challenges or taking advantage of alternative procedures, instead of proceeding with a system-wide challenge to government misconduct,” said Adam Zimmerman, a professor at Loyola Law School, Los Angeles. “These decisions may have some relevance to a burgeoning area of class action jurisprudence, where some judges have declined to certify class actions because they believe class action is not ‘superior’ to other kinds of more individualized alternative dispute resolution.”
