Trump SCOTUS Justices At Odds More Than You Might Imagine

Trump SCOTUS Justices At Odds More Than You Might Imagine June 25, 2019

As we come to the end of this Supreme Court term, a fascinating pattern has emerged. Trump’s two nominees for the court, Justice Neil Gorsuch and Justice Brett Kavanaugh are showing an independent streak from one another and sometimes from the other conservatives on the court as well. But perhaps this unpredictability is actually predictable.

Democrats’ warnings that Supreme Court Justices Neil Gorsuch and Brett Kavanaugh would solidify an unwavering conservative majority on the bench so far have not come to pass, with the two Trump-nominated justices crossing over to side with liberal colleagues on numerous occasions since joining the court…

Gorsuch sided Monday with the liberal wing of the Supreme Court, giving a narrow majority in support of a Native American man convicted for hunting in a national forest. Kavanaugh opposed the ruling.

A week earlier, Kavanaugh sided with liberals in a 5-4 decision that he wrote, ruling that Apple could be sued by iPhone owners over high prices in their App Store. Gorsuch opposed the ruling.

In March, the two found themselves in disagreement multiple times. Kavanaugh joined liberal justices in a ruling that delayed the execution of a cop killer amid claims that religious freedom would be violated if the death-row inmate’s Buddhist spiritual adviser wasn’t present during his final moments.

Gorsuch then joined liberals in ruling that the Yakama Nation doesn’t have to pay a Washington state fuel tax, while Kavanaugh dissented.

Gorsuch then joined Justices Samuel Alito and Clarence Thomas in dissent in a case brought by two Navy veterans who had been exposed to asbestos. But writing the court’s opinion, Kavanaugh said that the makers of pumps, turbines and blowers that required asbestos insulation to operate properly should have warned about the health dangers of asbestos exposure.

But was this really so unpredictable? The history of the court suggests it shouldn’t be. There are so many examples of justices nominated by a president who turned out to be very different than the president thought they would be — Harry Blackmun, David Souter, Sandra Day O’Connor, John Paul Stevens, Earl Warren and many others. Interestingly, the switch is always from conservative to liberal. I don’t know of a single example of a justice thought to be a liberal who moved to the right once on the court; all of these examples were thought to be conservatives and moved to the left.

I’m not saying Gorsuch or Kavanaugh are either going to turn into liberals. They aren’t. But we should recognize that merely because we apply a label to a justice doesn’t mean they’re always going to vote the way others under that label would typically vote. Labeling a justice conservative does not mean they’re all going to vote the same way on everything. In fact, the liberals on the court vote as a single block 92% of the time, while the conservatives do so 75% of the time in recent years. So those justices are actually more likely to “go rogue” than the liberals.

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