President Donald Trump’s two Supreme Court nominees – serving their first term together – did their part this week to showcase their conservative judicial philosophy and deliver on Trump’s vow to reshape the judiciary and turn the court to the right.
Brett Kavanaugh and Neil Gorsuch voted with the conservative flank on the bench in two of the most politically charged cases of the term: partisan gerrymandering and whether the 2020 census can include a question about citizenship.
For the most part, the two men, who attended the same high school and clerked for the same justice, cast consistent conservative votes. They also foreshadowed the future in some of their concurrences and dissents and votes to grant cases for the next term. Any lingering doubts about their conservative bona fides, with few exceptions, were wiped away this term.
Which isn’t to say that the two men always voted in lockstep, or didn’t side with the liberal justices at times. But in the cases that capture the public’s attention, they cast their lot with the right side of the bench.
“Candidate Donald J. Trump promised the American voters that he would appoint judges in the mold of the late Justice Antonin Scalia, a lion of the law,” said Mike Davis, a former Gorsuch clerk who served as chief nominations counsel to former Senate Judiciary Chairman Chuck Grassley, R-Iowa, and now runs a non-profit dedicated to confirming conservative nominees.
“And President Trump, in one of his most consequential achievements, delivered on that campaign promise with the appointments of Justices Gorsuch and Kavanaugh,” Davis added.
On partisan gerrymandering, Kavanaugh and Gorsuch joined the majority opinion of Chief Justice John Roberts declaring that federal courts have no role to police extreme partisan gerrymandering, slamming the courthouse doors shut to such claims. Conservatives Samuel Alito and Clarence Thomas rounded out the 5-4 majority.
It was a stinging loss for those, including liberals such as former Obama Attorney General Eric Holder, hoping that the court would step in and articulate a standard to determine when politicians go too far in drawing lines for political gain.
In the census case, Roberts ended up joining with the liberals to block the Trump administration from adding a citizenship question – for now. Kavanaugh and Gorsuch would have allowed it.
For liberals it was the latest signal that the court is prepared to take a hard turn right in the wake of Justice Anthony Kennedy’s retirement.
In the area of partisan gerrymandering, for instance, Kennedy had left open the door that the court might someday articulate a manageable standard to police cases of extreme partisan gerrymandering. Kavanaugh made the difference in the other direction.
“It’s difficult to overstate the importance of Justice Kennedy’s departure and his replacement in Justice Kavanaugh,” said lawyer Joshua Matz, who clerked for Kennedy. “There can be no doubt that Justice Kavanaugh’s arrival has moved the Court several miles rightward, heralding a new age at the Marble Palace and imperiling key constitutional precedents.”
Justice Ruth Bader Ginsburg made that same point in a speech earlier this month.
“The event of greatest consequence of the current term, and perhaps for many terms ahead,” Ginsburg said, is that Kennedy “announced his retirement.”
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Putting precedent in doubt
In a handful of 5-4 cases, Gorsuch and Kavanaugh voted with conservatives along familiar ideological lines in areas such as immigration, the death penalty, abortion and the unconstitutional “taking” of private land.
In a death penalty case, for example, Gorsuch, joined by his conservative colleagues, ruled against Russell Bucklew, who argued that death by lethal injection would cause him unconstitutional suffering due to a disease that caused an “unstable blood-filled tumor” to grow in his head. Gorsuch emphasized that the Eighth Amendment “does not demand the avoidance of all risk of pain” in carrying out executions. He noted that court precedent holds that an inmate cannot successfully challenge a method of execution unless the inmate identifies a “feasible, readily implemented” alternative that would “significantly” reduce a substantial risk of severe pain.
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They both dissented when the court blocked a controversial abortion law out of Louisiana from going into effect pending appeal.
They were in the majority in two cases when the liberals on the bench furiously criticized the conservatives majority for doing away with precedent.
“Today’s decision can only cause one to wonder which cases the Court will overrule next,” Justice Stephen Breyer asked rhetorically in one.
“Well, that didn’t take long” Kagan wrote in another. Overturning precedent alarms liberals who fear Roe v. Wade and other precedents could be on the line in the future.
And perhaps most importantly to the people responsible for their nomination, they delivered on a sleeper issue that has at times been below the public’s radar. Trump, then-White House counsel Don McGahn, Republicans on the Hill and the Federalist Society’s Leonard Leo made clear that they wanted nominees with a focus on the so called administrative state. They want the judiciary to step in and limit the power of federal agencies.
This term, two cases presented such an opportunity and liberals reacted with alarm.
“The prospect that a majority of the Justices might be willing to overturn Supreme Court cases that have long been central to the federal government’s ability to function properly – to protect consumers, to keep our air and water clean, to ensure American workplaces are safe – is deeply troubling,” said Brianne Gorod, chief counsel at the liberal Constitutional Accountability Center.
One case was argued in the first week of the term, before Kavanaugh took the bench, so he was unable to participate. But Gorsuch wrote a roaring dissent.
The case concerned a provision of the 2006 Sex Offender Registration and Notification Act which mandates criminal penalties for convicted sex offenders who fail to register with the National Sex offender registry. A Maryland man, Herman Gundy, argued that Congress had unlawfully left it up to the attorney general to determine the fate of offenders who were convicted before the law was passed.
Lurking behind the case was an effort to revive the “non-delegation doctrine” of the Constitution – a legal theory that holds that Congress can’t delegate its legislative power to other branches without giving the proper guidance.
Kagan, writing for four justices, upheld the scope of the law. Alito concurred in the judgement but said he was only doing so because there were not five justices to rule definitively on an “approach we have taken for the past 84 years.”
For his part, Gorsuch, unlike Alito, was ready. “In a future case with a full panel, I remain hopeful that the Court may yet recognize that, while Congress can enlist considerable assistance from the executive branch in filling up details and finding facts, it may never hand off to the nation’s chief prosecutor the power to write his own criminal code,” Gorsuch wrote.
He ended with a flourish. “That is delegation running riot,” he said.
Another case, Kisor v. Wilkie, concerned a dispute between Marine and Vietnam War combat veteran James L. Kisor and the Department of Veterans Affairs.
At issue in the case was whether courts should defer to an agency’s interpretation of its own regulations where there is ambiguity. Thursday, Kagan delivered an opinion for five justices (including Roberts) limiting the power of agency’s but stopping short of overruling a doctrine called “Auer deference.”
Gorsuch struck again.
“It should have been easy for the Court to say goodbye to Auer,” Gorsuch wrote.
Kavanaugh agreed that the “Auer deference” should be “formally retired,” he said. And then he made a baseball analogy.
“Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules,” Kavanaugh wrote.
But the two men weren’t always on the same side. Kavanaugh, for instance sided with the liberal justices to allow a group of iPhone owners who accused Apple of violating US anti-trust rules to move forward with a lawsuit.
And the two disagreed in a case concerning an African-American on death row in Mississippi who was tried six times for murder and challenged a prosecutor’s use of race in jury selection. “The state’s pattern of striking black prospective jurors persisted from Flowers’ first trial through Flowers’ sixth trial,” Kavanaugh wrote. Thomas, joined in part by Gorsuch, dissented.
The two were also on separate sides when the court struck down part of a law that authorizes harsher penalties for “using, carrying or possessing” a firearm in connection with a “crime of violence” as unconstitutionally vague.
“In our constitutional order, a vague law is no law at all,” Gorsuch wrote. “They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct,” he said.
In the case, Gorsuch sided with the liberals. Like his mentor and predecessor, the late Justice Antonin Scalia, Gorsuch often sides with liberals when it comes to the rights of criminal defendants when the laws used to convict them aren’t clear.
Kavanaugh dissented noting “crime and firearms form a dangerous mix. “This statute,” he wrote, “is not remotely vague.”