WASHINGTON, D.C.—In 53-year-old Bethesda, Maryland, native Brett Kavanaugh, Donald Trump has nominated one of the judiciary’s most ardent foes of net neutrality rules to a seat in the United States Supreme Court, writing in a dissenting opinion last year that the Obama-era rules guaranteeing that all online traffic must be given equal treatment “unlawful” and “must be vacated.”
In fact, those rules were vacated on June 11, though not by a court decision. In December, the now-Republican controlled Federal Communications Commission, chaired by Trump appointee Ajit Pai, voted to repeal the net neutrality rules, which prevented big telecom companies from charging extra for content providers to get on an internet “fast lane” and avoid having their data slowed or shut off by the big online service providers.
In the 2017 dissenting opinion in the District of Columbia Appeals Court, Kavanaugh wrote that prohibiting the ability of telecom companies to decide whose data gets through to consumers and whose gets throttled violates the free speech of those corporations, who include AT&T, Verizon, Comcast and other telecommunications giants.
“Internet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just as cable operators decide what content they will transmit,” Kavanaugh wrote, arguing that regulating those decisions violates the First Amendment.
When it comes to cases dealing directly with obscenity and pornography issues, Kavanaugh appears to have no discernible record. But as his net neutrality opinion appears to show, Kavanaugh—a devout Roman Catholic—has a lengthy record of judicial opinions and legal writings that reveal a viewpoint “almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases,” according to the legal blog Empirical SCOTUS.
In other words, as Senate Democratic Leader Chuck Schumer said on his Twitter account, “Kavanaugh frequently sides with powerful interests rather than defending the rights of all Americans.”
In one case that appeared to clearly demonstrate Kavanaugh’s preference for powerful interests over the well-being of individuals, the judge issued a dissent in a worker safety case involving the controversial aquatic theme park Sea World.
In that case, a Sea World trainer working with an Orca “killer whale” was killed and dismembered when a whale named Tilikum—made famous in the 2013 documentary Blackfish—dragged her into a drain in the whale’s performance pool.
But Kavanaugh’s dissent essentially said that the trainer knew the risks of working with Orcas when she took the job, rendering Sea World blameless. He compared working at Sea World to playing in the NFL or driving for NASCAR, and wrote that asking Sea World to take mesures to prevent injuries or deaths inflicted by the captive animals would be like asking NASCAR to “impose a speed limit during its races.”
On the issue of abortion rights, Kavanaugh has not published widely—but in a case last October, the DC Court ruled that an undocumented, pregnant teenage immigrant being held in a detentions center should be permitted to obtain an abortion. Kavanaugh disagreed and authored a dissenting opinion.
“The government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion,” Kavanaugh wrote in his dissent. But he tempered that opinion, if only slightly, noting that the Supreme Court has previously “held that the government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion."
But he added that he did not believe it placed an “undue burden” on the teen when the Trump administration prevented her from visiting an abortion clinic, sending her instead to a “pregnancy crisis center” where abortion was not an option.
In another writing which could directly impact the outcome of the Russia collusion investigation into the 2016 Trump campaign, Kavanaugh wrote in a 2009 law review article that presidents should be “exempted” from criminal prosecution while in office, because the indictment of a sitting president could “cripple” the government.
Photo By U.S. Court of Appeals for the District of Columbia Circuit / Wikimedia Commons
