Indefinitely Wild

Kavanaugh Sided with Seaworld in 'Blackfish' Case

The Supreme Court nominee wrote a troubling diatribe in 2013 against workers' rights

Except, like the opposite sentiment about orcas than the movie. (Wes Siler)

In addition to women, we’ve found another thing for which Supreme Court nominee Brett Kavanaugh has no respect: Whale trainers. 

On Thursday, I dug into the dissenting opinion Kavanaugh wrote in 2013 for the Seaworld v. Occupational Health and Safety Administration case, where he compared whale training to “daredevil motorcycle jumps” and ranted strangely about the Spider Man musical. That’s right: We may actually have managed to find someone who watched Blackfish and came away defending Seaworld. 

First, some background: OSHA filed its case against Seaworld after one of the park’s trainers, Dawn Brancheau, was killed during a Shamu Show by an orca named Tilikum. Outside reported on that story in 2010 and 2011 with our features “The Killer in the Pool” and “Blood in the Water,” both written by Tim Zimmermann. (He'd go on to co-write Blackfish.) The two pieces tell the story of Brancheau and a years-long pattern of dangerous behavior at Seaworld.

OSHA argued that Seaworld should have taken more steps to protect its trainers and it fined the park $70,000. Seaworld appealed, resulting in the court case, which in the end was defeated by a two-to-one vote in the U.S. Court of Appeals. Interestingly, it was President Barack Obama’s nominee for the Supreme Court Merrick Garland, along with Judith Rogers, who concluded that Seaworld should be held responsible for Brancheau’s death. 

Kavanaugh disagreed, writing a 2,900-word dissent that likened Brancheau’s work to other “extremely dangerous” sports like bull riding. “Participants in those activities want to take part, sometimes even to make a career of it, despite and occasionally because of the known risk of serious injury,” Kavanaugh wrote. “To be fearless, courageous, tough—to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk—is among the greatest forms of personal achievement for many who take part in these activities.” He went on to deny that close contact between whales and trainers is in any way different from “contact between players in the NFL or speeding in NASCAR races.”

The gist of his argument was that workers assume safety risks when they take jobs, writing: “When should we as a society paternalistically decide [that employees should be protected from] the risk of significant physical injury?”

Deborah Berkowitz, of the National Employment Law Project, explains why that’s problematic in a story published on the group's website earlier this month: “A bipartisan Congress passed the Occupational Safety and Health Act in 1970, and President Richard Nixon signed the legislation into law,” she writes. “It provided workers with the fundamental right to go to work and come home every day; workers should not have to sacrifice their lives for a paycheck. The law is clear that it is the employer’s responsibility to provide a safe workplace.”

During Kavanaugh’s confirmation hearing this week, Senator Dianne Feinstein questioned him about that argument, to which he responded, “The issue, Senator, was precedent. I follow, as a judge, precedent. The precedent of the Labor Department, as I read it, was that the Labor Department under the statute would not regulate what it called the intrinsic qualities of a sports or entertainment show.”

Jordan Barab, who served as OSHA's deputy assistant secretary at the time of the ruling, argues exactly the opposite: “He has made clear that he does not believe in the mission of OSHA, the goals of the Occupational Safety and Health Act or what Congress actually said in the law, despite his claim to be a textualist…He has shown himself, under sworn testimony, to be willing to make up facts and legal theories out of thin air to support his corporate-first ideology.”

Garland and Rogers ruled that whale performances are not a sport and thus do not necessitate undue risk to human life in order to take place. OSHA’s fine was upheld. But Kavanaugh’s dissent is still troubling. “Kavanaugh’s dissent should send a shiver down the spines of all workers who face serious hazards at work,” says Berkowitz, of NELP. “What would a Justice Kavanaugh mean for workers in dangerous industries—e.g., steel workers, roofers, meatpackers, or health workers assaulted on the job?”

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