Neil Gorsuch, associate justice of the U.S. Supreme Court, left, and Brett Kavanaugh, associate justice of the U.S. Supreme Court, attend the U.S. President Donald Trump’s State of the Union address to a joint session of Congress in the U.S. Capitol at Washington, D.C., U.S., on Tuesday, Feb. 5, 2019.
Doug Mills | Bloomberg | Getty Images
President Donald Trump likes to correct his “two great justices,” the new members of the Supreme Court, Justices Neil Gorsuch and Brett Kavanaugh.
“Justice Kavanaugh now sits alongside Justice Gorsuch to defend your rights, your Constitution, and your God-given freedom,” Trump said in a rally last fall. “Two great men. They will go down as great, great justices of the Supreme Court.”
However, as is becoming increasingly clear, the two guys aren’t exactly the same as it comes to interpreting the law.
If after case this term, Kavanaugh’s first on the seat, the two men disagreed — sometimes aggressively.
The information is clear: No two justices appointed by exactly the exact same president have disagreed more in their first term together since John Kennedy was president, according to Adam Feldman, the founder of Empirical SCOTUS, a site which examines the Supreme Court.
Overall, both agreed about 70percent of the time. By comparison, Justices Sonia Sotomayor and Elena Kagan, both appointed by President Barack Obama, agreed over 96percent of their time in their first semester. Chief Justice John Roberts agreed with Justice Samuel Alito, a fellow George W. Bush appointee, more than 90percent of the time.
Just Justices Clarence Thomas and David Souter come near, at 77%. Souter, who’s now retired, made such a pronounced drift toward the court’s liberals he motivated the conservative rallying cry”No more Souters. ” In contrast, Thomas is the court’s most reliable conservative.
The hard data is only one element of the split between the two men, who share a similar career trajectory and clerked for Justice Anthony Kennedy together. People who have argued cases before the 2 justices also state they have different styles when it comes to oral arguments.
“Justice Kavanaugh is very interested in precedent in his questioning; he asks a lot of questions about cases the court has decided,” stated Willy Jay, a partner in the law firm Goodwin Procter that argued a case in the high court in December.
“Justice Gorsuch’s questions very rarely have to do with the court’s prior precedents. They have to do with separation of powers, fundamental issues,” said Jay, who co-chairs Goodwin’s appellate litigation practice.
While both both have a tendency to side with their fellow conservatives, the divisions between them show a more fractured conservative majority compared to a liberals feared when Kavanaugh was confirmed to substitute the court’s longtime swing voter Kennedy this past year.
And, despite their alignment on some of the very high-profile instances of the period, the divisions reveal that the top court’s remarks tend to be less predictable than observers suspect.
“There’s going to be a strong conservative bloc,” Empirical SCOTUS’s Feldman said. “But there are going to be a lot of exceptions in certain areas.”
Those regions are starting to become evident. In cases involving Native American rights, criminal law, business problems, the death penalty and particular issues associated with abortion, daylight has spilled out between the two men.
That daylight was evident in among the court’s most high-profile recent company disputes, involving whether iPhone owners could bring an antitrust lawsuit against Apple.
Kavanaugh, writing for the court’s majority in May, stated they could. In dissent, Gorsuch accused him of displacing “a sensible rule in favor of a senseless one.”
It was also on display only this week when Gorsuch, writing for the court, struck down a law which increased certain penalties for offenses involving firearms because the statute was too vague.
“The Court’s decision today will make it harder to prosecute violent gun crimes in the future,” Kavanaugh wrote, dissenting.
In a March case involving product liability, Gorsuch wrote a vast majority opinion authored by Kavanaugh was “sure to enrich lawyers and entertain law students” but might “leave everyone else wondering about their legal duties, rights, and liabilities.”
On topics of more pressing social concern, both have also diverged.
In December, Kavanaugh sided with Roberts and the court’s liberals to reject a case involving two nations seeking to bar Planned Parenthood from getting Medicaid funding. Gorsuch sided with the conservatives.
In February, both Kavanaugh and Gorsuch were in the minority in a situation where they would have permitted a restrictive Louisiana abortion law to take effect, but just Kavanaugh authored an explanation of his reasoning, seeming to have a middle ground.
And in March, Kavanaugh voted with the court to stop the implementation of a Buddhist inmate who has asked for his religious adviser to be present at the execution room, and who had been denied. Gorsuch said he would have allowed the implementation.
“Justices Gorsuch and Kavanaugh may both be conservatives, and they were both appointed by President Trump, but they are not clones of each other,” Jonathan Adler, a professor at Case Western Reserve University’s law school, wrote recently.
To be sure, it’s early. Kavanaugh and Gorsuch are most likely to spend decades together. And justices at the onset of their life appointments are far more careful in their rulings and have assigned to write opinions in cases which are less divisive.
“Their differences in approach this term may not indicate that they are fundamentally of different minds on these issues, as much as they indicate that Kavanaugh is starting out a little more slowly in his first term,” Goodwin’s Jay said.
While many justices tend to move farther toward an ideological pole with time, Kavanaugh might have been more motivated to avoid making waves in his first term than many justices, given the controversy that surrounded his confirmation hearings this past year.
“If that was what he was looking to do, he did a good job of that,” said Feldman. “Percentage-wise, he is the justice most frequently in the majority. He voted along with the majority 91% of the time, which was the highest of all of the justices. If his goal was to deflect the criticism, and the talk about him, then he was probably successful in that.”