Tag Archives: Judge Brett M. Kavanaugh

Greenhouse Gas Case Sparks Double Dissent from Denial of Rehearing En Banc

Today the D.C. Circuit denied rehearing en banc in the Greenhouse Gas case.  No surprise there.  The panel decision upheld the EPA’s finding that carbon dioxide is a pollutant and upheld the agency’s regulation of CO2 emissions. The original panelists signed Chief Judge Sentelle’s opinion concurring in the denial of rehearing, and Judges Brown and Kavanaugh each dissented.  Today’s dissenters are always worth a read, and these offerings are no exception. Continue reading

Five D.C. Circuit Judges Will Speak at Federalist Society Convention

The D.C. Circuit is showing up in force at the Federalist Society’s annual National Lawyers Convention today through Saturday at the Mayflower Hotel, three stops away from Judiciary Square on the Red Line.  Continue reading

What “Withering Scrutiny”? Greenhouse on Judge Kavanaugh on Voting Rights

In the New York Times Opinionator blog, Linda Greenhouse tries to tease out tension between dicta by Chief Justice Roberts and dicta by Judge Kavanaugh that she suggests could influence the outcome of Shelby County v. Holder, the Voting Rights Act case in which the Supreme Court recently granted cert:  Continue reading

How Will Today’s Election Change the D.C. Circuit?

The D.C. Circuit could lose one of its judges during the next presidential term if the President is called on to fill a Supreme Court vacancy.  Judge Merrick Garland is frequently named as a possible second term SCOTUS appointee for President Obama, and Judges Brett Kavanaugh and Janice Rogers Brown have both appeared on lists of possible Romney appointees in recent months.   Continue reading

Divided Panel OKs Retaliation Suit for Security Risk Reporting (Again) Over Call for Full Court Rehearing

After the unusual decision to grant panel rehearing in September, a divided D.C. Circuit panel issued a second set of opinions in Rattigan v. Holder [pdf].  But the original separation of powers disagreement proved intractable, and both sides ended up close to where they started.   Continue reading

Roberts Turns Kavanaugh’s Taxing Power Hypo Into a Holding

In his dissent in Seven-Sky v. Holder, Judge Kavanaugh opined that the Affordable Care Act’s “shared responsibility payment” is a tax, and that it is therefore subject to the Anti-Injunction Act, which deprives the court of pre-enforcement jurisdiction over “any tax.” A majority of the Supreme Court (Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan) agreed with Judge Kavanaugh on the first point (that the mandate may be considered a tax) but disagreed with him on the second (that it is subject to the AIA).  The competing rationales behind these decisions reflect two different conceptions of judicial restraint. Continue reading

Judge Kavanaugh on War-on-Terror Jurisprudence

The American University Law Review has published War, Terror, and the Federal Courts, Ten Years after 9/11, the lightly edited transcript of a panel featuring Judge Brett M. Kavanaugh that was held at the 2012 Annual Meeting of the Association of American Law Schools. Continue reading