Kavanaugh’s dissent in regulatory case
When a killer whale drowned and dismembered a trainer at a SeaWorld park in Florida in 2010, federal labor officials fined the park $12,000 and required protective measures — over the objection of Judge Brett Kavanaugh, who predicted in a written opinion that the next step would be a ban on tackling in pro football.
“Tiger taming ... bull riding ... stock car racing ... boxing . ... The participants in those activities want to take part, sometimes even to make a career of it, despite and occasionally because of the risk of serious injury,” Kavanaugh wrote in April 2014. “When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves?”
He was dissenting from a 2-1 ruling of the federal appeals court in Washington, D.C., that found evidence that SeaWorld’s previous safety program was inadequate, that close contact between killer whales and trainers wasn’t essential to the park’s shows, and that the spectacle wasn’t a sport. The majority included the court’s chief judge, Merrick Garland.
More than four years later, Kavanaugh’s nomination to the Supreme Court by President Trump to replace retiring Justice Anthony Kennedy is awaiting Senate confirmation hearings. Garland remains on the appeals court after Senate Republicans refused to allow hearings in 2016 on his nomination by President Barack Obama to succeed the late Justice Antonin Scalia.
That allowed Trump to name Neil Gorsuch to fill Scalia’s seat last year.
The appeals court ruling in SeaWorld vs. Perez stands as an illustration of Kavanaugh’s approach to issues such as government regulation of the workplace and the limited degree of deference courts owe to regulatory agencies.
Kavanaugh’s dissent “seems consistent with a very antiregulatory, pro-corporate philosophy, a feeling that workers should assume the risk,” said Jordan Barab, an official in the Occupational Safety and Health Administration in Obama’s Labor Department.
The trainer, Dawn Brancheau, 40, was in a water platform alongside a killer whale named Tilikum at the SeaWorld park in Orlando before an audience in February 2010, doing a rollover that the whale was supposed to imitate. Instead, the 12,000-pound creature pulled Brancheau underwater and mutilated her. Labor investigators said that the same whale had killed a trainer at another park in 1991, and that SeaWorld knew of two subsequent deaths caused by killer whales.
SeaWorld argued that it had taken adequate safety measures by training employees to recognize signs of danger. OSHA officials disagreed, noting the previous deaths and the inherent dangers of working near killer whales. The agency fined the park $75,000 — later reduced to $12,000 — and told SeaWorld to take additional precautions, such as requiring barriers between the creatures and their trainers during performances.
Kavanaugh, in his dissenting opinion, said the government “effectively bans SeaWorld from continuing a long-standing and popular (albeit by definition somewhat dangerous) show.” Close contact is part of the show, he said, just as “tackling is part of football, speeding is part of stock car racing ... and punching is part of boxing.”
When Congress authorized the Labor Department to regulate safety in the workplace, Kavanaugh said, it did not intend to eliminate “punt returns in the NFL, speeding in NASCAR, or the whale show at SeaWorld.”
The majority opinion by Judge Judith Rogers, joined by Garland, rejected the comparison.
“No one has described SeaWorld’s killer whale performances as a ‘sport,’ ” she wrote.