Justice Kavanaugh Still Wants SCOTUS To Hear More Cases

The Supreme Court's docket may be awfully small, but it's not Justice Kavanaugh's fault.

In several recent posts I have noted that Justice Kavanaugh appears to want the Supreme Court to hear a significant number of cases that his colleagues do not. We know this because the Supreme Court's order lists often note that he would have granted certiorari in a case that was denied.

Today we see another example of this. Among the cases in which the Court denied certiorari on today's order list is South Carolina State Ports Authority v. National Labor Relations Board. In addition to noting that certiorari was denied, the order list also notes that Justice Kavanaugh would have granted the petition.

This case presented the following interesting questions:

1. Whether a union's unlawful secondary boycott is shielded by the work-preservation defense because the targeted secondary employer could choose to take its business elsewhere and, in that way, can "control" the primary employer's work assignments.

2. Whether a union's unlawful secondary boycott is shielded by the work-preservation defense even when no bargaining unit jobs are threatened.

While I find these questions interesting, it does not appear that four justices found them to be worthy of certiorari.

While he appears to want the Court to hear more cases, Justice Kavanaugh did not join Justice Alito's dissent from denial of certiorari in Coalition for TJ v. Fairfax County School Board, a case concerning the extent to which school districts may consider race (or proxies for race) in school assignment decisions.  (My co-blogger Ilya Somin blogged about the lower court's decision here.)

What this may suggest is that while Justice Kavanaugh wants to hear more cases that raise questions of significance to the business community or regulatory matters, including cases involving patents, tort litigation and labor law, he is not as keen to hear cases implicating culture war flashpoints, such as race.

An important qualification to note here is that justices are not required to disclose when they would have granted certiorari in a given case. So while we know at least some cases in which Justice Kavanaugh would have granted certiorari, we do not know how his colleagues voted in these cases, or whether there are other cases in which Justice Kavanaugh would have supported certiorari, but chose not to disclose that fact.