Justice Brett Kavanaugh, a zealous sports fan who said he’d be part of a team of nine at his confirming hearings, went solo in a pointed opinion this week that could change the face of college athletics.
Kavanaugh joined Monday’s unanimous ruling that the National Collegiate Athletic Association’s rules against so-called education-based compensation ran afoul of antitrust law. Kavanaugh went further, suggesting other NCAA compensation rules may also be unlawful in a concurrence that sports law scholar Sam Ehrlich called “a shot across the bow at the NCAA.”
The opinion in NCAA v. Alston by Kavanaugh, who made references to sports in multiple oral arguments this term, stood out for channeling that passion into concrete legal action, in a writing that could be cited for years to come.
‘In His Wheelhouse’
Kavanaugh is a sports fanatic. He was captain of his high school basketball team, played junior varsity at Yale, and has coached his daughters’ teams. The sizable debt he incurred for purchasing Washington Nationals baseball tickets featured in his contentious hearings dominated by allegations of sexual misconduct he strenuously denied.
That sports devotion may be why he was willing to invest in writing a separate opinion that no other justice joined.
Personal interest and experience—and a desire to raise an additional issue in an industry that you are passionate about—is behind a lot of solo opinions, said Ehrlich, a Boise State University professor who filed an amicus brief in the Alston case supporting neither party.
Ehrlich likened Kavanaugh’s role to that of former Justice Byron White, a standout college and professional football player who served as a justice from 1962-1993 and wrote dissents in NCAA-related cases.
“Obviously Kavanaugh doesn’t have quite the same perspective, but he’s clearly a big sports fan and coach, which provides a really interesting perspective on the Court,” Ehrlich said.
Kavanaugh’s opinion wasn’t a surprise to Stris & Maher partner Tillman Breckenridge, whose amicus brief on behalf of African American Antitrust Lawyers in support of the student-athletes was cited by Kavanaugh.
The case “was definitely in his wheelhouse” given his interest in sports, Breckenridge said.
Kavanaugh cited Breckenridge’s brief for the point that, while college presidents and other executives make big money off of college sports, “the student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing.”
NASCAR, Phillies, and Yankees
Kavanaugh isn’t the only sports fan on the bench. Justice Clarence Thomas spends his summers in his R.V. following the NASCAR circuit and made his allegiance to Nebraska college football known during the Alston argument.
Justice Samuel Alito is an ardent baseball fan, who roots for the Philadelphia Phillies and was honored with an appearance by the team’s mascot, the Phillie Phanatic, at a dinner by fellow justices. Justice Sonia Sotomayor is a New York Yankees fan who has thrown more than one ceremonial first pitch at a game. Gorsuch, who clerked for White and whose confirmation was backed by NFL Hall of Famer John Elway, wore a Denver Broncos jersey under his robe to his first group portrait with the justices.
But Kavanaugh appears to use sports to try to sharpen the legal issues presented in cases.
In a pending free-speech case involving a high-schooler who vented on social media after not making varsity cheer, Kavanaugh said the school had gone too far in punishing the girl by kicking her off the team.
As “a judge and maybe as a coach and a parent too, it seems like maybe a bit of overreaction by the coach,” he said during arguments in Mahanoy Area School Dist. v. B. L.
And in a criminal sentencing case argued this term, the Trump appointee drew on his experience as a high school basketball player growing up in the Washington area.
The disparity between punishments for crack and powder cocaine was “ushered into the law” by the 1986 death of Len Bias, Kavanaugh said, referring to the University of Maryland standout and burgeoning NBA star who died after taking powder cocaine.
That “was a shocking event, particularly in this area, particularly for those of us who—you know, I was a year younger than he was, looked up to him, like everyone in this area did,” Kavanaugh said in the Terry v. United States argument. The justices ruled unanimously against the defendant.