Appointing justices "such as Gorsuch and Kavanaugh"
By Scott Sumner
People often point to the fact that President Trump appoints Supreme Court justices “such as” Neil Gorsuch and Brett Kavanaugh. But do these two actually represent a distinct type? Maybe, but an article on “538” suggests that it’s too soon to know for sure:
Using SCOTUSBlog’s final statistics, I looked at the justices’ votes throughout the term. In these pairings, Kavanaugh closely aligned with Roberts and Alito, voting with Roberts 94 percent of the time and with Alito 91 percent of the time. But he only voted with Gorsuch 70 percent of the time — which meant that he voted with his fellow Trump appointee as often as he voted with liberal justices Elena Kagan and Stephen Breyer. Gorsuch, by contrast, voted most frequently with Thomas.
Two quick points:
I understand that many Supreme Court cases are non-controversial, so voting with liberal justices 70% of the time doesn’t tell us very much. In this sample, 39% of the cases were unanimous. But both Kavanaugh and Gorsuch would (by definition) vote with the liberals in those cases. So it remains true that Kavanaugh voted with liberals as often as with Gorsuch in even the more controversial cases.
I also understand that Kavanaugh has only been there for one term, and hence the sample may not be statistically significant. (I believe it was around 72 total cases.) It’s too soon to draw firm conclusions.
It’s also unclear as to why these two justices differ so often. Kavanaugh seems in some sense more “moderate” in his voting, but there are exceptions:
Roberts and Kavanaugh are more ideologically moderate than Gorsuch, but Gorsuch was more of a loose cannon. He joined the liberals in more closely divided cases than any of his conservative colleagues. That made him the “swingiest” conservative on the court, even though it was Roberts who ultimately determined the outcome of one of the most closely watched cases of the term when he voted to keep a question about citizenship off the 2020 census form for the time being.
Here’s a question for commenters who follow this more closely than I do. I am aware of different types of “judicial conservatives”. Some view the Constitution as a document that severely restricts what the federal government can do. Others, such as the late Robert Bork, prefer that the courts mostly defer to the decisions of the legislative and executive branches. Is it possible to discern a systematic difference in the type of conservatism practiced by these two new justices? Thanks.
HT: David Levey