It’s entirely understandable that Donald Trump’s two Supreme Court nominees, Neil Gorsuch and Brett Kavanaugh, are thought of as a matched set of jurists. They emerged from the same tightly controlled ideological vetting process, and were warmly and almost unanimously welcomed by conservatives when nominated. They both achieved confirmation on more or less party-line votes, though Kavanaugh’s approval was much more difficult thanks to allegations of sexual assault. They both even attended the same exclusive Jesuit high school, Georgetown Prep, where their tenure overlapped a bit. Their ascension to SCOTUS in such close proximity brought back memories of two Nixon appointees, Warren Burger and Harry Blackmun, who had been boyhood friends and were accordingly dubbed the “Minnesota twins.”
It’s unlikely that Gorsuch and Kavanaugh’s jurisprudence will diverge as sharply as that of the two Minnesotans (as Chief Justice Burger steered the Court in a generally conservative direction while Blackmun, the author of Roe v. Wade, ultimately became a member of SCOTUS’s liberal bloc). But as the New York Times’ Adam Liptak explained this weekend, the two men are already exhibiting some differences:
“They’re disagreeing more than we would have expected,” said Jonathan H. Adler, a law professor at Case Western Reserve University. The two justices have found themselves on opposite sides in quite a few cases, including ones involving the death penalty, criminal defendants’ rights and Planned Parenthood.
Both justices lean right, but they are revealing themselves to be different kinds of conservatives. Justice Gorsuch has a folksy demeanor and a flashy writing style, and he tends to vote with Justices Clarence Thomas and Samuel A. Alito Jr., the court’s most conservative members.
Justice Kavanaugh is, for now at least, more cautious and workmanlike. He has been in the majority more often than any other justice so far this term.
Liptak wrote this with exquisite timing, just prior to a 5-4 SCOTUS decision in which Kavanaugh sided with the Court’s liberals (Ginsburg, Breyer, Sotomayor, and Kagan) and wrote the majority opinion while Gorsuch wrote a dissent for himself and the Court’s other staunch conservatives (Thomas, Alito, and Roberts), as CNN reports:
A group of iPhone owners accusing Apple of violating US antitrust rules because of its App Store monopoly can sue the company, the Supreme Court ruled Monday.
Justice Brett Kavanaugh, in the majority opinion, said that when “retailers engage in unlawful anticompetitive conduct that harms consumers,” people buying those companies’ products have the right to hold the businesses to account.
“That is why we have antitrust law,” Kavanaugh wrote. The court’s four liberal justices joined Kavanaugh in the 5-4 decision.
Gorsuch’s dissent relied on a previous SCOTUS precedent disallowing antitrust suits in cases where a third party (in this case Apple’s app developers) play a key role. The decision involved a relatively narrow standing-to-sue procedural issue, but did show Kavanaugh willing to side with consumers challenging corporate big dogs.
But as Liptak observed in his piece on the two Trump justices, this occasional divergence should not be exaggerated, and could disappear in some upcoming landmark decisions. For one thing, Kavanaugh may be exhibiting a well-known “freshman effect” whereby new justices often hew close to the Court’s ideological center until they get their bearings:
Early in their tenures … justices are less apt to dissent, according to data compiled by Lee Epstein, a law professor and political scientist at Washington University in St. Louis, and Kevin Quinn, a political scientist at the University of Michigan.
That could explain, Professor Epstein said, why Justice Kavanaugh has voted with the majority in 95 percent of the argued cases this term decided by the full court in signed decisions, while Justice Gorsuch was in the majority 82 percent of the time.
“After his controversial confirmation, Justice Thomas laid low, voting far more often with the majority in divided cases than he did in later years, as did Gorsuch,” Professor Epstein said. “Kavanaugh seems to be doing the same, hewing closely to the chief justice — the court’s new center. Whether, within a term or two, Kavanaugh joins Alito, Thomas and now Gorsuch on the far right remains to be seen.”
Kavanaugh’s political sponsors and Federalist Society fans are certainly counting on him taking the path of Clarence Thomas rather than Harry Blackmun, and becoming, if not Neil Gorsuch’s twin, at least an ideological blood brother.