Here's How Kavanaugh's Dissent in a SeaWorld Case Highlights His Active Disdain for Worker Safety
In his statement to Congress this week during his confirmation hearing, Judge Brett Kavanaugh said his mother taught him that judges must always stand in the shoes of others.
Though hardly original or deeply inspirational, it’s not bad advice. The problem is that Kavanaugh never chooses steel-toed work boots. In every case involving workers, Kavanaugh has put himself instead in the wingtips of CEOs. He is a man born to wealth and privilege who attended Georgetown Preparatory, one of the most expensive private high schools in the country, with annual tuition of nearly $57,000, followed by a similarly exclusive Ivy League college education.
The vast majority of Americans cannot conceive of paying $228,000 to get a kid through high school. Kavanaugh’s opinions illustrate that he has no idea how to relate to them, and, in fact, doesn’t care to try to understand people with grit under their fingernails. That makes him, as a Supreme Court justice, dangerous to working people.
The case that perfectly illustrates Kavanaugh’s carelessness toward workers and obsequiousness toward corporations is SeaWorld v. U.S. Secretary of Labor Thomas Perez. Kavanaugh authored the dissent. Writing for the majority was Judge Judith W. Rogers, joined by Merrick Garland, Chief Circuit Judge of the U.S. Court of Appeals for the District of Columbia.
Garland’s name is familiar because he’s the judge whom former President Barack Obama nominated to replace Antonin Scalia after the justice died in February of 2016. Senate majority leader Mitch McConnell, in a move unprecedented in U.S. history, blocked a Senate vote to confirm Garland by refusing to conduct hearings on his nomination for nearly a year, enabling the new Republican president, who lost the popular vote, to choose a successor to Scalia.
In this case, SeaWorld v. Perez, Garland figuratively pulled on the water shoes of SeaWorld trainer Dawn Brancheau, who was dismembered and drowned by 6-ton killer whale Tilikum, an orca that had killed humans twice before. Kavanaugh, by contrast, shoehorned himself into the fancy footwear of SeaWorld executives.
After Tilikum killed 40-year-old Brancheau before a horrified live audience at the SeaWorld park in Orlando, Florida, in 2010, the Occupational Safety and Health Administration (OSHA) investigated. The law that created OSHA states: “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
Even so, every year, about 5,000 workers are killed on the job. These are not white shoe lawyers like Kavanaugh who spend their days in expensive office buildings with majestic views. These are steelworkers and paper makers and tire builders confronted daily by dangerous machinery, lethal chemicals and hazardous processes essential to their jobs. Jordan Barab, a former deputy assistant secretary of labor at OSHA, compiles on his blog, Confined Space, a horrific list of those killed every week—workers suffocated in illegally unshored trenches, workers smashed in scaffolding collapses, workers electrocuted, workers crushed by construction equipment.
Even as Republicans in Congress continually cut OSHA’s budget, the agency investigates these deaths. In cases where it finds violations, it may fine the employer, but the real point of this grim exercise is to warn of dangers, require changes and prevent deaths.
Noting that Tilikum had killed people twice before, OSHA found that SeaWorld orcas had repeatedly endangered workers including biting trainers, lunging at them, pulling them into the water and, in a nonfatal incident in 2006, dragging a trainer by the foot and submerging him repeatedly for about 10 minutes. SeaWorld’s own incident reports demonstrated that it knew of the threat to trainers.
OSHA determined that SeaWorld had failed in its duty to provide a safe workplace by exposing trainers to hazards about which it was aware. OSHA fined SeaWorld $70,000 and recommended procedures to safeguard workers.
OSHA wanted the safety measures SeaWorld had instituted for Tilikum’s trainers after Dawn Brancheau’s death extended to trainers working with other SeaWorld orcas. This was a rational demand considering that another orca that SeaWorld owned and trained had killed a trainer at a Canary Islands park just two months before Tilikum killed Ms. Brancheau in Florida.
Still, SeaWorld appealed, contending that despite all of the killings, SeaWorld was unaware that working with killer whales posed a hazard. In addition, it said the trainers of killer whales other than Tilikum could look out for themselves.
This “look out for yourself” attitude is common among employers. If a worker’s arm is sliced off by a massive paper-cutting machine, the corporation will say the employee should have watched out. Even though the company removed a safety barrier from the machine to speed production, managers will deny culpability.
The judges in the majority in the SeaWorld case found, however, that SeaWorld was responsible under the terms of the occupational safety act requiring that employers eliminate recognized hazards likely to cause employee death or serious physical harm. And, the majority said, the remedy OSHA wanted, physically separating workers and orcas, was reasonable since SeaWorld already was doing that with Tilikum.
In his dissent, Kavanaugh lumped shows at SeaWorld into a made up “sports and entertainment” category including race car driving and professional contact sports like football. OSHA has not regulated these in the past, he falsely asserted, so it can’t now. In fact, the two judges in the majority listed numerous cases in which OSHA had investigated and fined entertainment venues, including the Broadway production of Spider-Man in which so many cast members were injured.
Kavanaugh’s proclamation that SeaWorld shows are analogous to NFL games is absurd. An orca jumping show is not a sport, let alone a contact sport. No one in the SeaWorld audience is rooting for a home team.
Kavanaugh’s real problem, like that of many Republicans and Libertarians, is government itself. They want to strangle and kill government, including all of its departments that safeguard workers, students, the elderly and the environment.
In his dissent, Kavanaugh asked: “When 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 physical injury is simply too great even for eager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?”
Government need not get involved, he contended, writing: “The sports and entertainment industries regulate themselves, often through collaboration between management and participants, to ensure that the risks are at least known to all.” He may get some blowback on that assertion from the grieving families of professional football players who suffered debilitating headaches, mental illness and dementia and who have committed suicide because of concussion-induced degenerative brain disease.
Certainly disagreeing with him are millions of workers whose employers deliberately expose them to hazards because it means making a quick buck. But Kavanaugh, who has worn nothing but white collars, wouldn’t know anything about that. And he has made no effort to find out.
Judges Judith Rogers and Merrick Garland pointed out in the majority opinion that Congress provided the answer to Kavanaugh’s questions in 1971 when it created OSHA. That’s the agency that decides when the risks are too high.
Kavanaugh on the Supreme Court would pose an extreme risk to workers. Merrick Garland was a much better choice.
This article was produced by the Independent Media Institute.