Kavanaugh’s awful SeaWorld dissent – bad for workers, bad for the environment
As he makes the rounds to senators’ offices to persuade them he’s the right man to replace retiring Justice Anthony Kennedy, Supreme Court nominee Brett Kavanaugh is undoubtedly passing out a lot of smiles. Those contrast sharply with the snarls and sneers and outright contempt contained in his judicial record when he talks about workers instead of glad-handing the men and women he needs to confirm him as the ninth member of the court.
If he is confirmed, just as scary as will be his likely opinions on the environment, reproductive rights, LGBTQ rights, consumer protection, and an expansive view of presidential power (including exclusion from indictment), his stance on labor will be atrocious, worse than those of Kennedy, the faux moderate who has for decades been a staunch friend of employers and foe of workers.
As AFL-CIO President Richard Trumka said upon learning of the nomination, Kavanaugh has a “dangerous track record of protecting the privileges of the wealthy and powerful at the expense of working people. […] The current Supreme Court has shown that it will side with greedy corporations over working people whenever given the chance, and this nominee will only skew that further.” The Service Employees International Union tweeted that “confirming Kavanaugh would tip the scales of justice against working people.”
Other critics of Kavanaugh say, however, that having him on the court probably wouldn’t move labor law rulings much further to the right because they’re already so bad. Maybe so. But anyone who doubts how extreme the 53-year-old Kavanaugh will be on labor matters if the Senate okays his lifetime appointment need only look at his lone dissent on the D.C. Circuit Court of Appeals in the case of SeaWorld v. Perez. One of the two judges holding for the majority in that case was none other than Merrick Garland, President Barack Obama’s moderate Supreme Court nominee for whom Republicans refused even to hold a hearing.
The case involved Dawn Brancheau, a SeaWorld trainer who, during a 2010 performance before a live audience in Orlando, Florida, drowned after being torn apart by Tilikum, an orca or killer whale also associated with the deaths of three other people. As a consequence of the tragedy, the Occupational Safety and Health Administration—one of the federal agencies rightists have long targeted for undermining or demolition—found that SeaWorld was aware from previous close calls of how dangerous working with orcas was. The company had been told by outside experts that the way to make it less dangerous was to physically separate trainers from the creatures. Consequent to its investigation, OSHA issued SeaWorld three citations, including No. 2, a willful General Duty Clause Citation. Such citations are issued when there is “a workplace condition presenting a hazard that likely caused death or serious physical harm.”
OSHA also fined SeaWorld $70,000 and ordered it to physically separate trainers from the orcas. The company had, in fact, already undertaken the separation after Brancheau was killed. Company owners weren’t happy with that citation or with the fine and appealed to an administrative law judge. But the judge ruled OSHA was on solid ground, noting that SeaWorld officials knew of the lethal hazards and hadn’t done enough to reduce the risk.
From there, the company took the matter to the D.C. Circuit, where the lead attorney representing SeaWorld was Eugene Scalia, son of the late Justice Antonin Scalia. In 2014, the court denied the petition to review the case on a vote of 2-1, with Chief Judge Judith Rogers and Judge Merrick Garland holding for the majority.
They found that “There was substantial record[ed] evidence that SeaWorld recognized its precautions were inadequate to prevent serious bodily harm or even death to its trainers and that the residual hazard was preventable.”
Judge Kavanaugh dissented.
Jordan Barab, the former Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, describes Kavanaugh’s dissent:
A former OSHA assistant secretary, David Michaels, said, “In his dissent in the Sea World decision, Judge Kavanaugh made the perverse and erroneous assertion that the law allows Sea World trainers to willingly accept the risk of violent death as part of their job. He clearly has little regard for workers who face deadly hazards at the workplace.” […]
Kavanaugh’s idea of making America great again apparently harkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed. Back then employers who maimed or killed workers often escaped legal responsibility by arguing that the employee had “assumed” the risk when he or she took the job and the employer, therefore, had no responsibility to make the job safer. Maybe the worker even liked doing dangerous work. Employers also escaped responsibility by showing that the worker was somehow negligent. (Interestingly, Sea World originally blamed Brancheau for her own death because she hadn’t tied her hair back.)
“Perverse and erroneous.”
Kavanaugh argued that OSHA had acted “paternalistically” and shouldn’t be deciding for workers whether a particular employment in entertainment and sports—football, boxing, car racing, etc.—is too dangerous. Rogers and Garland pointed out, however, that the 48-year-old Occupational Safety and Health Act requires employers to make sure the workplace is safe and not put the onus on employees to choose whether they want to be employed safely or to risk death every time they show up for work.
The SeaWorld case isn’t a one-off.
As Sharon Block, a former member of the National Labor Relations Board in the Obama era, wrote in a post at the blog On Labor, “What stands out about Kavanaugh’s record in labor cases is not just his consistency in ruling for employers over workers, but the seemingly unnecessary positions he sometimes takes when doing so.”
Certainly, Trump could have found an even more extremist choice to nominate for the court. Rick Santorum, for example, thinks Kavanaugh isn’t extreme enough. Perhaps he can suggest someone who is when the next justice retires or passes on.
More coverage of Brett Kavanaugh’s nomination to the Supreme Court:
(Originally appeared at DailyKos.)