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How Trump’s Supreme Court Nominee Sides on Science Issues

ByKelsey TsipisNOVA NextNOVA Next

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Last month, Supreme Court Justice Anthony Kennedy announced his plans to retire, setting off a fury of speculation about who President Trump would nominate to America’s highest court.

This week, Trump put an end to the speculation by announcing his nomination of Brett Kavanaugh, a 53-year-old federal appeals court judge with a conservative record.

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Supreme Court
This week, President Trump nominated Brett Kavanaugh, a 53-year-old federal appeals court judge with a conservative record, to the Supreme Court.

Judge Kavanaugh, who once clerked for Justice Kennedy, worked for the second Bush administration before being confirmed as a federal appeals judge for the District of Columbia in 2006. If the nomination is confirmed by Congress, Kavanaugh’s ideology and interpretations of law could influence the American judicial system for years to come.

Here’s a look on how Judge Kavanaugh stands on some of the most pressing science issues today.

Affordable Care Act

Judge Kavanaugh, perhaps inadvertently, paved the way for the Supreme Court’s 2012 upholding of the Affordable Care Act.

Kavanaugh never directly argued in favor of the Affordable Care Act. Instead, he argued that ACA’s inclusion of an individual mandate (the fee Americans pay if they choose to deny coverage) qualified as a tax and thus was outside the jurisdiction of the courts. Later this reasoning was adopted by Chief Justice Roberts, who cast the deciding vote in the court’s 5-4 ruling in favor of the ACA.

Here’s Kelly Phillips Erb reporting for Forbes :

“Dissents don’t typically cause a big stir, and this one might have just been a legal footnote except for one thing: The argument that the payment for the mandate was a tax—and not a penalty—became a central argument at SCOTUS when considering whether the Affordable Care Act was constitutional. Chief Justice Roberts agreed with the government’s position (which, remember, the government did not initially bring in the Seven-Sky case) that the shared responsibility payment was a “tax” and not a “penalty”—and Congress has the authority to regulate federal tax.”

Environmental Issues

Judge Kavanaugh’s rulings regarding the government’s role in protecting the environment have vacillated, though they are generally in favor of less industry regulation.

Twice in 2012 Judge Kavanaugh wrote in dissent of the EPA’s ability to regulate greenhouse-gas emissions. In 2015, when the Obama administration tried to enact rules requiring power plants to cut mercury emissions and other pollutants, Judge Kavanaugh dissented, saying that the EPA failed to consider the costs of regulations before moving forward. Here’s Jacob Gershman for The Wall Street Journal :

“The EPA, he concluded, had ignored a requirement in the Clear Air Act that the agency determine whether an electric-utility regulation is “appropriate” before imposing it.

The “problem here is that EPA did not even consider the costs,” he wrote. “And the costs are huge, about $9.6 billion a year—that’s billion with a b—by EPA’s own calculation.”

However, the judge has not always ruled against environmental efforts. Here’s Edith Roberts for SCOTUS blog :

“In National Mining Association v. McCarthy, in 2014, he wrote a panel decision upholding an EPA program aimed at addressing the environmental effects on waterways of mountaintop-removal coal mining. And in 2010, in American Trucking Associations v. EPA, he wrote an opinion upholding the EPA’s review of California’s limits on emissions from in-use non-road engines. On occasion, a Kavanaugh opinion siding with the EPA’s opponents has been a win for environmental interests, as in Natural Resources Defense Council v. EPA, in 2014, in which he wrote an opinion that vacated an EPA rule establishing an affirmative defense for cement-kiln operators sued for exceeding emission limits.”

Net Neutrality

Kavanaugh’s record on protections for the environment may be a bit ambiguous, but his stance on net neutrality is pretty clear cut—he’s not a fan. Here’s Ted Johnson for Variety :

“He’s not only certain that the FCC lacks authority to impose the regulations, but that such rules violate the First Amendment.
In a dissent last year, he wrote that “Supreme Court precedent establishes that Internet service providers have a First Amendment right to exercise editorial discretion over whether and how to carry Internet content.” He added that the government “may interfere with that right only if it shows that an Internet service provider has market power in a relevant geographic market.” That was something the FCC did not do, he noted.”