Supreme Court nominee doesn’t respect precedent

right to engage in protest, and to be protected from workplace hazards. In several of Kavanaugh’s opinions, he’s run counter to the text and purpose of statutes enacted by Congress.

Two of his opinions involve workplace protections that have been important to working Nevadans for decades.

The first involved a company that had illegally hired undocumented workers and then challenged their ability to vote in a union election. As with some employers who don’t worry about the immigration status of their employees until the employees unionize or ask for higher wages, the employer suddenly questioned immigration status once the workers wanted a union.

Because labor law does not question workers’ immigration status as long as they are “employees,” the D.C. Circuit rejected the employer’s argument. Federal labor law protects the right of all employees to “organize and bargain collectively” and entrusts the National Labor Relations Board to enforce that principle. The NLRB has long taken the position that undocumented immigrant workers are protected because if they were not, employers would have a greater incentive to hire and exploit them.

Kavanaugh dissented from the court’s opinion, arguing that the workers’ immigration status was relevant to their ability to cast votes in a union election, even though Supreme Court precedent since 1984 has clearly been that undocumented workers are employees under the law. The Court in 2002 said employees’ immigration status could prevent them from accessing some remedies that other employees can obtain, but writing them out of the statute requires Congress to change the law, which Congress did not do even after the passage of employer sanctions for hiring undocumented immigrants first passed in 1986. But Kavanaugh’s personal beliefs seem to be the opposite, so senators should question him if there are other precedents from which he would depart as well.

Another case in which Kavanaugh dissented for what seemed to be his personal philosophy toward government regulation involved the death of an employee who worked with orcas at a Florida theme park. The Occupational Safety and Health Administration found that the employer could have and should have taken precautions that might have prevented the trainer’s death. The D.C. court held that OSHA had the authority to issue the citations, but Kavanaugh dissented. He saw OSHA’S regulation of workplaces where employees work with dangerous animals as “paternalistic” and the same as banning fighting in ice hockey, the punt return in football, and regulating “the distance between the mound and home plate in baseball.”

Besides the major differences between those sports and working with dangerous animals, Congress gave OSHA broad discretion to use its expertise to investigate when there were “recognized hazards” (like killer whales) that might lead to severe injury or death. Kavanaugh wrote that such regulation was “protecting workers from themselves.”

In Nevada, where labor organizing has been strong and OSHA has investigated many injuries and deaths on the job, the following questions affecting workplace protection will be especially relevant:

What respect should be given to past Supreme Court cases upholding New Deal protections for workers? What role should administrative agencies play in keeping Americans safe in the workplace?

Nevadans should make sure to watch and follow the confirmation hearings closely, and expect the nominee to answer these questions.