Arguing for SeaWorld Before a Future Supreme Court Justice
In 2010, a killer whale attacked and killed a SeaWorld trainer named Dawn Brancheau. The federal Occupational Safety and Health Administration, a division of the Labor Department, investigated and concluded that SeaWorld either knew or should have known that the whale posed a threat to humans and should have taken steps to protect trainers.
The government’s argument prevailed before an administrative law judge, and then again in federal court, where Mr. Scalia’s firm represented SeaWorld. When the company appealed to a federal court in Washington, Mr. Scalia argued on its behalf.
Mr. Scalia and his team maintained that Congress had never intended for the safety administration to regulate an occupation like training and performing with killer whales. They further argued that SeaWorld already had adequate safety measures in place, and that the trainers had accepted the risks inherent in their jobs and that it was their responsibility to manage these risks.
David Michaels, the head of the safety administration at the time, said that it was true that the agency did not have much experience on the subject of killer whales, but it had a responsibility to cover the entire American work force. “We researched the question of what’s known about killer whales, we researched this particular killer whale,” Dr. Michaels said, “and we thought we made the right decision” to bring the case.
Except for the question of whether the company had willfully exposed its trainers to danger, the courts largely agreed with the government. The appeals court rejected Mr. Scalia’s arguments in a 2-to-1 decision, and the company did not appeal the case further.
But should a similar case arise if he is confirmed as labor secretary, the argument Mr. Scalia made might have more currency. The lone dissent in his favor was written by Brett Kavanaugh, who was then a judge on the appeals court and is now on the Supreme Court.
Many sports and entertainment activities, from professional football to the circus, pose hazards to those who participate in them, Mr. Kavanaugh wrote in his dissent.
But, he continued, “it is simply not plausible to assert that Congress, when passing the Occupational Safety and Health Act, silently intended to authorize the Department of Labor to eliminate familiar sports and entertainment practices, such as punt returns in the N.F.L., speeding in Nascar, or the whale show at SeaWorld.”