WASHINGTON D.C. —­­ Today, President Trump announced Judge Brett Kavanaugh as his pick to fill Justice Anthony Kennedy’s seat on the Supreme Court of the United States.

“Judge Kavanaugh has been the leading voice on appeals courts for limiting Chevron deference — meaning that courts would more to scrutinize administrative agencies’ interpretations of statutes,” said TechFreedom President Berin Szóka, citing Kavanaugh’s dissent last year when the full DC Circuit, sitting en banc, upheld the FCC’s application of Title II to broadband in its 2015 Open Internet Order. “He decried blind deference to bureaucrats as an abdication of the judiciary’s responsibility to determine what statutes mean, ceding that legislative function to the Executive, and thus violating the Constitution’s separation of powers.”

“Judge Kavanaugh’s arguments in US Telecom were based on arguments that TechFreedom alone raised throughout that litigation as intervenors, explained Szóka. “Namely, Chevron deference should not apply to such a ‘major question’ of ‘vast economic or political significance.’ The issue in that case wasn’t really about net neutrality, but rather the sweeping power to control the Internet claimed by the FCC in the name of net neutrality. The ‘major question’ doctrine originated with Justice Breyer but has been embraced by Justices across the ideological spectrum. Among Justice Kennedy’s very last opinions was his dissent in Pereira calling for a rethinking of Chevron. Kavanaugh, though appointed by Trump, could join Justices from both sides of the aisle in checking power grabs by Trump and his successors — of either party.”

“Limiting Chevron deference isn’t about advancing the interests of industry or party, but rather about protecting all Americans from bureaucracy run amuck,” continued Szóka. “Sometimes, limiting Chevron might help a particular company, but it could also help plaintiffs in immigration, surveillance or civil liberties cases. It simply means that, when statutory language is ambiguous, judges will not simply give the government a blank check. That, in turn, will force Congress to start writing clearer laws.”


We can be reached for comment at media@techfreedom.org. See our work on privacy and surveillance, including:

  • Tech Policy Podcast #155: Supreme Court of Tech
  • Our statement on Title II litigation potentially heading to the Supreme Court
  • Our statement on Supreme Court or Congress’s ability to determine who regulates the Internet
  • Our statement on our appeal over the DC Circuit’s decision upholding Title II reclassification