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How might Brett Kavanaugh on the Supreme Court affect crypto?

Judge Kavanaugh’s nomination has caused a stir in the U.S. media as his confirmation would likely result in a right-wing tilt in the Supreme Court for generations to come — but would his appointment be good or bad for crypto?

Early in July, President Donald Trump announced his nomination of conservative Judge Brett M. Kavanaugh to fill Justice Kennedy’s seat on the U.S. Supreme Court at the end of July. “Judge Kavanaugh has impeccable credentials, unsurpassed qualifications, and a proven commitment to equal justice under the law," President Trump told the press. But many are asking how this commitment to equal justice might be applied to crypto?

Kavanaugh and technology
One concern for crypto users is Kavanaugh’s stance on net neutrality. He argues that it violates the free speech rights of internet providers. In 2017, he stated: “Internet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just as cable operators decide what content they will transmit,” and, thereby, suggests that internet providers should have the right to censor the Internet, which, in an extreme case, could also mean the blocking of cryptocurrency websites.

Furthermore, Kavanaugh has reportedly been a strong supporter of the NSA’s spy program. In 2015, he expressed his support of the NSA’s bulk collection of phone metadata, considering the highly controversial practice as a “special need” that takes priority over privacy concerns. This may suggest that anonymous cryptocurrency projects such as ZCash, Monero, and PIVX could come under more scrutiny should a case covering these projects or other digital privacy cases feature on the Supreme Court’s roster.

Crypto under Kavanaugh
John Paul Schnapper-Casteras, a Washington-based Supreme Court litigator who also acts as an advisor to technology companies, says it is difficult to judge how the addition of a new jurist could affect the cryptocurrency industry.

“The legal landscape around cryptocurrencies is still rapidly developing and uncertain in many areas, whether it be at the SEC, in federal courts, or on the Hill. At this point, it is hard to accurately predict what sort of litigation will be most pressing in several years and which will settle or be appealed up to the Supreme Court — let alone how a prospective justice would sway the outcome on a particular issue,” Schnapper-Casteras said.

Legal precedents are extremely important as they dictate how future cases with similar fact scenarios are decided. Having said that, no cryptocurrency-related cases have yet made it to the Supreme Court in the United States. Hence, the Court’s opinion on bitcoin and cryptographic assets still largely remains a mystery.

To date, the only two countries where a Supreme Court has gotten involved in the crypto community were India when the Indian Supreme Court refused to lift the Reserve Bank of India’s cryptocurrency banking ban and Russia when its Supreme court instructed a local city court to review an appeal against a digital currency website that was blocked.

Judging by Kavanaugh’s views on net neutrality and digital privacy, his appointment may turn out to be more harmful than beneficial for the cryptocurrency community in the U.S. On the other hand, as Kavanaugh resides on the side of “big business” and favors deregulation, the blockchain industry may benefit from that and could potentially continue to grow without stifling over-regulation.

Kavanaugh’s political views
Some insight into how Judge Kavanaugh might lean can be gleaned from milestones in his career to date. In a general sense, Liberals and Democrats see him as a ‘worse case scenario’ — fearing that his appointment as a Supreme Court Justice could put legal precedents affecting women’s rights, LGBT rights and environmental regulations at risk.

Kavanaugh has also voiced his opposition to the Consumer Financial Protection Bureau (CFPB), a government agency that was set up by the Obama Administration in 2010 tasked with protected consumers in the financial sector. In 2016, Kavanaugh claimed the director of the CFPB has almost as much power as the president.

The Supreme Court’s nominee’s views on environmental laws are also troubling to his opponents. Judge Kavanaugh has reportedly voted in a number of cases to limit the actions that the Environmental Protection Agency can take.

All that said, Kavanaugh is considered as a friend of “big business” and could play a key role — if appointed — in the continuance of the Trump administration’s ongoing deregulation of the commercial sector. While this is a cause of concern for the left, it may actually be good for crypto, given its potential to revolutionize and disrupt business processes overall.

Also, fears about Kavanaugh taking an impartial approach to issues may have been overblown. Although his credentials are conservative, former students of his who filled out professor evaluation forms at Harvard Law School, have complimented his even-handed approach to presenting political issues, according to a report by the New York Times.

“While most of the class shared rather conservative views, the judge presented the other side quite well, even though he likely shared most of those conservative views. Many of the HLS professors could learn from his acceptance of views across the political spectrum.” one of his former students wrote — while another student stated: “If you didn’t know […] that Judge Kavanaugh had worked in the Bush administration, I don’t think you would have been able to say this is a conservative.”

To date, Judge Kavanaugh has not made any public statements on the topic of cryptocurrencies or blockchain technology. Before this becomes a real topic of conversation, however, his appointment must first be approved by Congress. Democrats have promised a tough confirmation fight and if they can delay his appointment until beyond the U.S mid-term elections, a change in the makeup of the Senate may well render the discussion moot.


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