Americans across the country are justifiably up in arms over the latest Supreme Court Justice nominee, Brett Kavanaugh. Mr. Kavanaugh is an avowed partisan, hostile to women’s rights and consumer protection policies, as well as the conservative boogie-man, “Big Government.” What many Americans don’t know, however, is how his addition to the court could change the role of government generally, and in workplace safety specifically for the next generation. For Kavanaugh, freedom is the ability to work with deadly hazards without government interference, and this spells trouble for workers in every state.
One clear example of Kavanaugh’s unwillingness to protect workers from hazardous conditions can be seen in his dissent in a Sea World appeal to the DC Circuit Court in 2014. The case dealt with the Occupational Safety and Health Act citation against Sea World following the death of orca trainer Dawn Brancheau. In the 2-1 ruling, Kavanaugh disagreed with his peers, likening Brancheau’s occupation as animal trainer to that of a football and ice hockey player. “When,” he asked, “should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves– that the risk of significant injury is simply too great even for eager and willing participants?” The answer, of course, is when the people, through their elected representatives, say so.
This questions highlights his hostility to safety regulations, as well as his clear misunderstanding as to regulations of any kind are for. Regulations are created with consumer and worker safety in mind. They are not in place to impede on individual’s ability to enjoy themselves through seeking out danger, which, by the way, was not the case in Brancheau’s death or the resulting lawsuit. However, Kavanaugh continued wrote that thrill seeking “despite and occasionally because of the known risk of serious injury” is not the government’s concern. Sure, maybe it isn’t, but that wasn’t the case at hand. OSHA did not require “participants” to do anything, it required Sea World, and other employers, to ensure safer work conditions.
The blatant hostility Kavanaugh exhibited towards worker protections via OSHA is part of a larger attack on the Department of Labor in general, which is tasked with occupational safety. The could-be Supreme Court Justice has called it a “bureaucracy,” hinting that it is anti-democratic due to it being run by officials appointed and not elected. Ironically, if given a hearing and confirmed within four months of the mid-term election, Kavanaugh would be joining a more prestigious group of unelected policy shapers.
Statistically as hostile to government regulation as Justices Gorsuch and the late Justice Alito, a Justice Kavanaugh would turn back the clock to the 1920s, or maybe even to the 1850s for workers rights and civil liberties. With an election just around the corner, we call on the Senate to wait until the American people can weigh in in November, just as they were forced to do not too long ago by Senator McConnell.