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Tripling Down on Plain Meaning: Bankruptcy and the Kavanaugh Appointment

posted by Jason Kilborn

It seems fairly clear that, if Trump's latest nominee to the Supreme Court, Brett Kavanaugh, is sworn in, the Court's trend of resolving virtually all statutory disputes on the basis of "plain meaning" will be cemented in place. An analysis of Kavanaugh's bankruptcy-specific jurisprudence seems unnecessary in light of his fairly clear comments, nicely summarized by Anthony Gaughan over at the Faculty Lounge blog. His rejection of legislative history and search for intent/purpose does not bode well for bankruptcy and consumer-protection disputes, such as Obduskey v. McCarthy & Holthus LLP, the FDCPA case on the Court's docket for next year. Perhaps the words in these statutes are less clear and meaningful than those in the Constitution, but it seems likely that a Justice Kavanaugh would retreat to the comfortable confines of statutory language as frequently as possible to maintain his vision of a passive and unthreatening judiciary. Dust off your Webster's and probably also your Garner!


For all of Kavanaugh's poo-pooing legislative history, his monster of an opinion in PHH v. CFPB was founded on an even thinner and more speculative reed. Kavanaugh, if you'll recall, held that the CFPB was unconstitutional. That's an incredibly radical thing for any judge to do--it's not every day that a judge just goes and declares a federal agency unconstitutional. His basis was a mosaic theory of offenses, but chief among them being the lack of at-will removal of the CFPB Director. Yet there is nothing in the Constitution's text that directly speaks to this--the Constitution doesn't contemplate independent agencies of any flavor.

Nonetheless, Judge Kavanaugh wrapped himself in the cloak of the Constitution while in fact deriving principles from it that are on even shakier grounds than anything based on legislative history. And then to put the cherry on top, he came up with a uniquely activist remedy, namely that the CFPB Director should simply be removable at will by the President. A true minimalist judge would have said that the problem is Congress's to fix. In short, I see a judge who uses extra-textual sources when necessary to get to the result he wants.

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