Supreme Court nominee Brett Kavanaugh has demonstrated a deep suspicion of government regulation, a pattern aligned with the Trump administration and perhaps best exemplified by his dissent in the case of a killer whale that attacked a SeaWorld trainer.
The case, arising from a widely publicized tragedy in Orlando, Florida, offers a window on the legal approach and sometimes cheeky writing style of the man poised to join the nation’s highest court.
As Kavanaugh blasted a Labor Department move to sanction SeaWorld following the drowning of a trainer by the orca Tilikum, he declared that the agency had “stormed headlong into a new regulatory arena” and warned that regulators would try to impose new safety requirements on sports, the circus and more.
Overall, his view is that agencies should exercise authority as clearly spelled out in federal statutes and that judges should not, as occurred in the SeaWorld case, defer to agency interpretations that go beyond what’s explicit in a law.
That view goes to the heart of a modern debate in the courts and Congress over regulators’ power. It’s a debate that generally splits liberals and conservatives, Democrats and Republicans. And it’s one that can have real world consequences for federal safeguards covering workers, consumers and the environment.
Kavanaugh, as well as some of the Supreme Court’s more conservative justices, question a longstanding legal principle dictating that judges defer to agencies’ interpretations of vague and open-ended statutes, as long as the interpretations are reasonable. They counter that if there’s new problem to solve, Congress should address it with a new law.
That would inevitably lead to less regulation, observes Harvard law professor Jody Freeman, who specializes in administrative law and environmental issues. “If you hamstring the agencies and say every time there’s a new issue, every time there’s a new problem … you have to go back and get express permission from Congress, that’s a way of saying, you don’t want the agencies to do very much. Congress doesn’t produce much new law now.”
In the SeaWorld case, decided in 2014 by the US Court of Appeals for the District of Columbia Circuit, Kavanaugh set up the issue as a question of “Who decides?”
“When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves … ” he wrote in a dissenting opinion. “And most importantly for this case, who decides that the risk to participants is too high?”
His answer was not federal regulators. He argued that the Labor Department acted arbitrarily when it penalized SeaWorld for failing to keep a trainer from “recognized hazards” under federal job-safety law, when the work was inherently risky. He compared the SeaWorld trainer’s work to sports and entertainment, such as: “The circus. Horse racing. Tiger taming. Standing in the batter’s box against a 95 mile per house fastball. Bull riding at the rodeo. …. Movie stunts. The list goes on.”
The majority on the three-judge DC Circuit panel said such comparisons were inapt.
“The nature of SeaWorld’s workplace and the unusual nature of the hazard to its employees performing in close physical contact with killer whales do not remove SeaWorld from its obligation … to protect its employees from recognized hazards,” the court said in a majority opinion by Judge Judith Rogers, signed also by Judge Merrick Garland. They offered comparisons to traditional but dangerous industries such as welding and firefighting.
Those judges deferred to the Labor secretary’s interpretation of workplace safety coverage.
Such deference, a longtime pattern in federal courts, is the opposite of the skepticism Kavanaugh advocates.
In opinions and speeches, Kavanaugh has questioned a 1984 Supreme Court case, Chevron v. Natural Resources Defense Council, that said judges should defer to agency interpretations of ambiguous laws. That, he said in a 2017 speech, “encourages agency aggressiveness on a large scale.”
“Under the guise of ambiguity,” Kavanaugh insisted, “agencies can stretch the meaning of statutes enacted by Congress to accommodate their preferred policy outcomes.”
Overall, Kavanaugh’s view appears stricter than centrist conservative Justice Anthony Kennedy, whom Kavanaugh would succeed. Kavanaugh has more firmly and clearly laid out arguments for greater skepticism of regulation that encroaches on business.
SeaWorld cited after trainer’s death
Dawn Brancheau, a SeaWorld trainer, was performing in a pool at Shamu Stadium before a live audience in 2010. Tilikum, who had earlier killed a trainer at a marine park in Vancouver, had apparently been coached at SeaWorld to mimic Brancheau’s behavior. But in this incident, instead of rolling over on a platform, Tilikum grabbed Brancheau and pulled her into the pool. Brancheau drowned. (The incident became the subject of a 2013 documentary, “Blackfish,” co-produced by CNN.)
After an investigation by the Occupational Safety and Health Administration (OSHA), the Labor Department cited and fined SeaWorld for violating a duty to protect its animal trainers from “recognized hazards” of drowning or injury when working with killer whales. It said the theme park could have better protected trainers such as Brancheau with, for example, physical barriers.
SeaWorld, defending the precautions that had been taken, argued that it had not exposed its employees to hazards and, more fundamentally, asserted that when a risk is inherent in the activity that risk cannot constitute grounds for a recognized hazard under OSHA rules.
Kavanaugh agreed as he first paid homage to risk-taking performers. “Americans like to witness the thrill of victory, to cheer the linebacker who hammers the running back at the goal line, to yell with admiration as Derek Jeter flies into the stands down the left-field line to make a catch …”
The DC Circuit majority wrote that “had Congress intended all unsafe and unhealthy performances in the entertainment industry to be beyond the scope of employee protection, it could have included such an exemption in the Occupational Safety and Health Act, and it did not.”
Kavanaugh said their interpretation went too far.
“In the real world,” Kavanaugh wrote, “it is simply not plausible to assert that Congress, when passing the Occupational Safety and Health Act, silently intended to authorize the Department of Labor to eliminate familiar sports and entertainment practices, such as punt returns in the NFL, speeding in NASCAR, or the whale show at SeaWorld.”
Such sentiment worries Senate Democrats, including Senate Judiciary Committee Ranking Member Dianne Feinstein. She has said she will scrutinize Kavanaugh’s record in this area because he would be “the deciding vote in cases about whether federal agencies have the authority to curb climate change, protect consumers, safeguard workers’ rights.”
For its part, the Trump administration wants judges who would diminish the influence of federal agencies on American life and business.
White House counsel Don McGahn, who has taken the lead in assisting Trump in screening candidates for the bench, told the Conservative Political Action Conference in February that President Trump was seeking jurists who had a record of scrutinizing “the regulatory apparatus.”
“One of the things we interview on is their views on administrative law,” McGahn said, adding, “This is different than judicial selection in past years.”