Where SCOTUS Contenders Stand on Technology

July 9, 2018

President Donald Trump is set to announce his nominee to replace retiring Supreme Court Justice Anthony Kennedy during a prime-time unveiling at 9 p.m.today — a decision expected to reshape the court for decades to come and reverberate across different policy spheres. Four appellate judges are widely seen as the favorites: Brett Kavanaugh, Raymond Kethledge, Amy Coney Barrett and Thomas Hardiman. Here’s a look at where they stand on tech and telecom issues:  

A LIKELY NET NEUTRALITY CHALLENGER — Kavanaugh, a well-connected D.C. Circuit Court judge, has come under fire from Democratic leadership over his dissent in a ruling that upheld the FCC’s since-rescinded net neutrality rules. In United States Telecom Association v. Federal Communications CommissionKavanaugh called the Obama-era rules “one of the most consequential regulations ever issued by any executive or independent agency.” But he argued the measure was “unlawful and must be vacated” because it violated the First Amendment. Senate Minority Leader Chuck Schumer tweeted that the opinion shows Kavanaugh “frequently sides with powerful interests rather than defending the rights of all Americans.”  

AGENCY DEFERENCE IMPERILED — Several of the SCOTUS contenders could embolden challenges to the decades-old Chevron doctrine, the precedent that courts should defer to federal agencies on certain regulatory decisions. In his 2017 net neutrality ruling, Kavanaugh suggested that a lack of explicit authorization from Congress rendered the agency’s actions invalid — a view at odds with Chevron, which was cited to uphold the internet regulations. Randolph May, president of the Free State Foundation, told MT that Kavanaugh would be likely to continue to question that precedent on the high court. “I think it is a good bet that Judge Kavanaugh would be receptive to reconsidering the Chevron deference doctrine, or at least limiting its application,” he said.  

— Kethledge has also taken aim at the doctrine, writing in an articleadapted from a speech he delivered at his alma mater, the University of Michigan, that the precedent can lead to “sloppy work” from judges. “Deference brings latitude, which can bring a sense that one is less accountable, which can bring a temptation to cut corners,” he said.

Read more at Politico

^