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Roberts, Gorsuch Cross-Over Votes Deliver Wins for Liberals

June 26, 2019, 7:33 PM

Court watchers on the left are bracing for ideological opinions by the Supreme Court’s fortified conservative majority, but this term the liberal justices have gained the vote of one of their more conservative colleagues for victories in several closely divided cases.

In the penultimate round of opinions June 26, both Chief Justice John Roberts and Justice Neil Gorsuch crossed over to give the Democratic-appointees wins in two cases that split the justices 5-4—a sentencing dispute, and a case challenging a longstanding administrative law doctrine.

It was the second time the chief justice did so this term. It was the fourth time Gorsuch crossed over.

To be sure, the court’s last—and arguably biggest—opinions will come Thursday in consequential cases involving efforts to curb partisanship in redistricting and the Trump administration’s plans to add a citizenship question to the 2020 census. If the justices follow the cues they gave during oral arguments this spring, those could cut along ideological lines, handing major victories to conservatives.

Still, all of the Republican-appointees have crossed over in 5-4 cases—or their equivalent—at some point this term.

That’s led to liberal victories in nine close cases, whereas the conservative bloc has only prevailed in six.

The number of cross-over votes by conservative justices this term highlights “the firmness with which the liberals have stuck together” in cases where they can win by one vote, said Washington Supreme Court veteran and Goodwin partner William Jay.

Sticking Together

There have been some instances of liberal justices—which include Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan—crossing over, too.

Both Breyer and Kagan joined their more conservative colleagues in finding that the placement of a 40-foot World War I memorial in the shape of a Latin cross on public land in Maryland doesn’t violate the Establishment Clause. That clause forbids the government from favoring one religion over another.

But the liberal bloc’s cohesiveness in 5-4 cases continues a pattern over the past several terms, Jay said. He noted that not only have the liberal justices voted together, they’ve stuck together on their reasoning, too.

In contrast, in the Latin Cross case, the justices produced five concurring opinions. Conservative justices wrote three of those concurrences, in addition to the majority opinion.

The result was to muddle the impact of the ruling.

Jay guessed that the liberal justices would continue to stick together as the court hands down its remaining opinions for the term, particularly in the partisan gerrymandering disputes.

He noted that the last time the court dealt with the merits of a partisan gerrymandering dispute, Vieth v. Jubelirer in 2004, the four more liberal justices all wrote separately to explain their different reasoning. That’s lead to criticism based on the lack of a unifying theory.

Liberal-Libertarian Alliance

The victories that the liberal justices have racked up this term are due in large part to Gorsuch, who crossed over twice in criminal cases during the court’s final week of the term.

On Monday, Gorsuch sided with the liberals in striking down a federal law that increases the sentence for certain gun crimes. On Thursday, Gorsuch voted with them in a sentencing dispute in a child pornography case.

The pair of opinions, both authored by Gorsuch, “suggest an emerging liberal-libertarian alliance in criminal justice cases,” said David H. Gans, whose progressive group, the Constitutional Accountability Center, regularly files friend-of-the-court briefs at the high court.

It’s “an important development that will be worth watching in the years to come,” Gans said.

Gorsuch, who replaced conservative icon Antonin Scalia, has inherited Scalia’s “role as the civil libertarian on criminal matters,” said South Texas College of Law Houston law professor and frequent friend-of-the-court Josh Blackman.

For the price of a fifth vote, “the progressives are signing onto some expansive language that could be used to weaken other elements of the administrative state,” Blackman said.

Gorsuch’s opinion in the child pornography supervised release case United States v. Haymond, for example, relied heavily on the Framers’ understanding of the Constitution. Known as “originalism,” it’s a doctrine embraced more frequently by conservatives.

Saving Precedent

The remaining cross-over votes have come in a hodgepodge of cases.

Gorsuch twice joined his more liberal colleagues this term in tribal cases that backed the Indian tribes.

Roberts—the next most frequent justice to side with the liberals—crossed over earlier this year in a death penalty win for an inmate with dementia.

He also crossed over June 26 in a highly anticipated administrative law case that sought to curtail federal agency power. The vote was technically 9-0, but the justices were divided 5-4 in their reasoning.

Roberts’ vote helped preserve a longstanding doctrine requiring courts to defer to administrative agencies’ interpretation of ambiguous regulations, suggesting the the Chief Justice may not be as willing to overturn precedent as his conservative colleagues.

These cross-over votes by the Chief Justice are often explained by his desire for consensus building, said McDermott partner Paul W. Hughes.

He pointed to Roberts’ latest cross-over vote in the administrative law case, which really seemed to push the court to the middle, Hughes said. Hughes argued for the petitioner in that case.

That cross-over put Roberts just ahead of Justice Clarence Thomas, who’s crossed over a total of six times since joining the court in 1991. Roberts has joined liberal in a 5-4 vote seven times, including his controversial vote in 2012 to uphold Obamacare.

Thomas’s sixth cross-over vote came in a class action decision favoring class action plaintiffs.

Two First

Justice Samuel Alito, who has been on the bench since 2006, had his first ever cross-over vote June 20 in a case about sex offender registries.

Hughes said Alito’s vote can be explained in part by the fact that Alito is a former prosecutor, and the court’s decision came down against criminal defendants.

Others have suggested that Alito’s vote isn’t a true cross-over based on the language in his separate concurrence.

At issue was a little-used doctrine known as the non-delegation doctrine, which curbs the power Congress can hand over to the executive.

Alito said it wasn’t the appropriate time to revive the doctrine, but added that he’d be open to doing so "[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years.”

“But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment,” Alito wrote.

The court’s newest justice, Brett Kavanaugh, also racked up his first cross-over vote this term.

He sided with his more liberal colleagues in an antitrust case against tech-giant Apple.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com