Oct 18, 2018

Justice Kavanaugh's confirmation and its impact on employment law

On Saturday, Oct. 6, 2018, after a very bitter confirmation fight, Brett Kavanaugh assumed the seat on the Supreme Court of the United States which was vacated by retiring Associate Justice Anthony Kennedy. Although Justice Kennedy was regarded as a critical “swing” vote on the Court, many anticipate that Justice Kavanaugh will vote consistently with the conservative Justices. His addition gives the conservatives a solid majority on the Supreme Court, which will impact the direction of the Supreme Court for years to come.

Justice Kavanaugh has over a dozen years of judicial experience. He was appointed to the U.S. Court of Appeals for the D.C. Circuit in 2006 and has authored over 300 decisions. He is generally described as a strict constructionist. In his decisions, Judge Kavanaugh typically takes a narrow approach to statutory interpretation, literally regarding and attempting to apply the plain text of statutes and their history. He has resisted invitations to expand the law or to “legislate from the bench” and has been very respectful of Supreme Court decisions. As a justice, it will be interesting to observe the direction he takes when precedent, legislation or legislative history is not clear and is open to interpretation.

There are several employment decisions on the Supreme Court’s docket for the remainder of this term. Consistent with his textualist philosophy, it seems unlikely that Justice Kavanaugh will agree to or advocate for any expansion of law. His narrow view could directly impact LGBTQ+ employees seeking clarification of their protected status under Title VII. Based on his judicial approach, we may expect deference to the legislature, even after his brutal confirmation hearing. As the Court hears arguments this fall, we will see the path the Court takes with its new conservative addition.

If you are seeking more information or wish to discuss the future of employment law before the Supreme Court, reach out to one of Chuhak & Tecson’s Employment Law attorneys.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by:
Jeralyn H. Baran, Principal