A couple of weeks ago at Notice & Comment, Chris Walker flagged his post at SCOTUSblog on Judge Kavanaugh’s approach to administrative law. Today, I have a post over there entitled Judge Kavanaugh and Justiciability.
Here is how it begins:
The U.S. Court of Appeals for the District of Columbia Circuit is an unusual court. Because it disproportionately hears lawsuits involving the United States, it often wades into the “famously murky” waters of the political-question doctrine, as well as the equally murky doctrines of standing, final agency action, and ripeness and mootness. In fact, the local rules require parties in “direct review” cases—cases in which challenges to an administrative agency action must be brought directly in the D.C. Circuit, instead of in a district court first—to address standing. All of these issues involve questions of justiciability: whether, as a threshold matter, a federal court has the authority at all to decide the legal merits of a case. I can attest, moreover, that the D.C. Circuit takes justiciability seriously. When I was a clerk, a judge promised to take any clerk to lunch who found a meritorious, unbriefed justiciability issue.
It is safe to say that Judge Brett Kavanaugh has spent untold hours thinking about justiciability. When I teach the political question doctrine, I assign the en banc decision in El-Shifa Pharmaceutical Industries Co. v. United States, a case I discuss below about a 1998 U.S. missile strike on a Sudanese pharmaceutical plant. Kavanaugh’s concurrence is well worth your time.
For this post, I’ve been asked to survey Kavanaugh’s justiciability opinions and consider how his confirmation might change the Supreme Court’s approach to these issues. I don’t think he would change it all that much. For one thing (to be sure, with some notable exceptions), there is often a great deal of consensus among the justices on justiciability, so even if Kavanaugh were a revolutionary (and he’s not), he wouldn’t be the swing vote anyway. I’m also not sure there would be much difference between Kavanaugh and Justice Anthony Kennedy for many of these kinds of cases, so even if the court were divided, a Kennedy/Kavanaugh switch wouldn’t shift things. Even so, Kavanaugh’s justiciability opinions merit a read because they show his mind at work.
As you might imagine, Judge Kavanaugh has written many opinions on the subject.