“It would be difficult to dispute the fact that Justices Gorsuch and Kavanaugh have, so far, voted consistently as judicial conservatives, including in cases regarding religious liberty, abortion rights and constitutional structure,” said Rick Garnett, a constitutional law professor at the University of Notre Dame.
The subpoena rulings, which advanced a New York grand jury investigation involving Trump but probably left his tax returns shielded from public view through the election, were a fitting finale to a term that left almost everybody with victories to cherish and wounds to nurse.
The mixed bag was almost entirely the doing of Roberts. Once a steadfast conservative vote himself, the chief justice joined the court’s liberal wing to deliver narrow victories for abortion rights and the DACA deferred-deportation program. Kavanaugh and Gorsuch dissented from both 5-4 rulings.
The term’s final rulings came as Trump ramps up his re-election campaign by seeking to galvanize his political base with calls to remake the judiciary with more conservative judges, a key issue that fueled his first presidential run.
“The real question we face concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom,” Gorsuch wrote.
In the DACA case, both Gorsuch and Kavanaugh would have let Trump rescind the Obama-era program, which protects more than 650,000 immigrants from deportation and lets them seek jobs. The program affects people who were brought to the U.S. illegally as children. The majority
The DACA case included what is becoming a Kavanaugh hallmark: a separate opinion explaining exactly what in his view the court had, and had not, decided. He said the ruling would let the Department of Homeland Security “relabel and reiterate” its cancellation of the program, “perhaps with some elaboration.”
The biggest exception to their conservative outcomes came on LGBT rights, when Gorsuch wrote the court’s 6-3
“Gorsuch stuck to his textualism commitments to reach a result that conservatives did not like,” said Gillian Metzger, a constitutional law professor at Columbia Law School. “But you’re not going to get conservative or liberal justices voting in lockstep in every case.”
Gorsuch also joined the liberals in a 5-4 ruling that said much of eastern Oklahoma, including Tulsa, remains American Indian territory. He said the federal government had promised the land to the Creek Nation in two treaties in the 1830s.
“Because Congress has not said otherwise, we hold the government to its word,” Gorsuch wrote. The ruling raises questions about Oklahoma’s power to prosecute Native Americans and enforce regulations. Kavanaugh dissented.
Unlike Gorsuch, Kavanaugh didn’t cast the pivotal vote to join the liberals in any 5-4 majority this term, according to Adam Feldman, creator of empiricalscotus.com, which tracks Supreme Court trends.
Like Roberts, Kavanaugh tends to prefer narrow rulings, and he agreed with Roberts more than any other justice, according to Feldman’s statistics. But Kavanaugh joined Roberts and the liberals only twice in 6-3 majorities in argued cases, including a clash over the scope of the Clean Water Act.
“There was some thought, when Justice Kavanaugh joined the court, that he would provide cover for the chief justice by joining the chief when he did something that disappointed conservatives,” said David Strauss, a constitutional law professor at the University of Chicago Law School. “But that hasn’t really happened.”
In the marquee cases of the term, the
But even there, the two added a pro-presidential spin. Rather than join Roberts’ majority opinion, Kavanaugh wrote separately to say state grand juries should have to show a “demonstrated, specific need” for presidential records -- a tough standard the chief justice chose not to apply. Gorsuch joined Kavanaugh’s opinion.
In argued cases alone, the court issued nine 5-4 opinions with the five Republican-appointed justices -- Gorsuch, Kavanaugh, Roberts,
Gorsuch and Kavanaugh were on board for a trio of
The same group
CFPB and Guns
They both said Congress violated the Constitution when it tried to insulate the Consumer Financial Protection Bureau director from being fired by the president. A splintered court
Each was on board when the court
They were in a 5-4 majority that
And both suggested they were eager to take up a Second Amendment case, even if some of their colleagues weren’t. Gorsuch dissented when the court
“The Trump administration has succeeded in stacking the federal judiciary with many very conservative judges,” Metzger said. “I think that holds overall true for Justices Gorsuch and Kavanaugh, who have been solid conservative votes on many central issues.”
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