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The Supreme Court of the New Gilded Age

Senate Majority Leader Mitch McConnell, a Republican from Kentucky, from left, Brett Kavanaugh, U.S. Supreme Court associate justice nominee for U.S. President Donald Trump, and U.S. Vice President Mike Pence, stand during a meeting at the U.S. Capitol in Washington, D.C., U.S., on Tuesday, July 10, 2018. Senate Republicans are pledging a swift confirmation process that would put Kavanaugh on the bench before the new term opens Oct. 1, and there is little Democrats can do to stop them. Photographer: Chip Somodevilla/Pool via Bloomberg

While they definitely wanted a justice who would overrule Roe v. Wade, Republicans will also be getting a justice who wants to gut the regulatory state and handcuff the next Democratic administration:

The White House did not mince words when it introduced Judge Brett M. Kavanaugh to business and industry leaders on the occasion of his nomination to the Supreme Court this summer.

“Judge Kavanaugh has overruled federal agency action 75 times,” the administration said in a one-page unsigned memo touting what it considered the highlights of Kavanaugh’s 12 years as a judge on the U.S. Court of Appeals for the D.C. Circuit.

“Judge Kavanaugh protects American businesses from illegal job-killing regulation,” the memo said. “Judge Kavanaugh helped kill President Obama’s most destructive new environmental rules.”

Hot-button social issues such as abortion and race have so far dominated the debate about Kavanaugh’s nomination, but there is no more important issue to the Trump administration than bringing to heel the federal agencies and regulatory entities that, in Kavanaugh’s words, form “a headless fourth branch of the U.S. Government.”


Fein said “Congress passes laws that establish agencies that deal with new problems that arise. Under Kavanaugh, agencies would not be able to use existing power. They would have to go to Congress to enact new laws

Kavanaugh’s opinions have drawn opposition from groups not normally outspoken on judicial appointments. The Natural Resources Defense Council has announced it opposes Kavanaugh’s nomination; its only prior public opposition to a Supreme Court nominee was against Justice Samuel A. Alito.

Other environmentalist groups are also alarmed. They point to a case called EME Homer City Generation, L.P. v. EPA. Kavanaugh wrote a majority opinion saying that the EPA could not regulate pollution from one state that was afflicting other states downwind — even if the state spewing emissions was harming the health of those downwind.

“It undercuts environmental protection to such an extent that it hearkens back to pre-EPA powers when we had tragedies like Love Canal and 1969 burning of the Cuyahoga River,” said Pat Gallagher, director of the environmental law program at the Sierra Club. “Kavanaugh’s speeches, opinions and writings all indicate antipathy toward strong regulatory powers like EPA needs to do its job.”

The shift of conservative jurisprudence away from deference to executive agencies is a big deal, and is going to be a very serious problem going forward. But, hey, I hear he’s a great guy to car pool with and he might occasionally hired the proteges of elite liberal law professors who suck up to him in public, so it’s going to be OK.

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