WASHINGTON – President Donald Trump regularly praises his two Supreme Court nominees, but they have shown over the past two years that they don’t always agree with him – or with each other.
In just the past month, Associate Justice Neil Gorsuch sided twice with the court’s liberal justices in landmark cases. First, he declared that employment discrimination against gay, lesbian and transgender workers was based on their sex and therefore illegal. Then he determined that the eastern half of Oklahoma remains Native American territory.
Associate Justice Brett Kavanaugh dissented in both cases, aligning himself with the Trump administration. In the LGBTQ rights case, he quipped that under Gorsuch’s “literalist” approach, a 1964 law has always prohibited sexual orientation discrimination – “unbeknownst to everyone.”
But Kavanaugh has aligned himself most closely with Chief Justice John Roberts, who sits in the ideological center of the court and whom Trump criticizes as often as he lauds his two nominees. Kavanaugh agreed with Roberts on 93% of cases in the most recent term and 92% in the 2018-19 term.
Their independence has at times unnerved conservatives who cheered Gorsuch’s nomination in 2017 and were cautiously optimistic about Kavanaugh’s nomination 18 months later. In retrospect, some say they now understand why neither former appeals court judge appeared on Trump’s first list of 11 potential nominees, issued in May 2016.
“Justice Gorsuch and Justice Kavanaugh are judges, and not clones,” said Mike Davis, a former Senate Judiciary Committee counsel who clerked for Gorsuch and helped usher Kavanaugh through his 2018 Senate confirmation.
Both Gorsuch, 52, and Kavanaugh, 55, have voted with the court’s conservative majority far more often than not. In this year’s major decisions on abortion, immigration, religious liberty and executive authority, they voted as expected – and as the Trump administration wanted.
But their independent streaks were evident on the term’s last day, when they agreed with the court’s 7-2 judgments in two cases testing Trump’s challenges to subpoenas seeking his tax returns and financial records. The rulings let New York prosecutors and congressional investigators continue to pursue the documents.
“A president does not possess absolute immunity from a state criminal subpoena,” Kavanaugh wrote for the two Trump nominees, though he went out of his way to note that Trump can continue fighting the New York subpoena in federal district court.
Until the past month, Kavanaugh was the most reliable member of the court in the 2019 term, voting with the majority in every case. He wound up in dissent only four times: In addition to the LGBTQ rights and Native American cases, he would have let Trump end the DACA program for young immigrants and Louisiana impose new restrictions on abortion clinics.
Gorsuch agreed with the majority opinions nearly 90% of the time in the 2019 term but only 75% in the previous term, among the lowest agreement rates on the court. He led the court with 11 written dissents in that term, compared to Kavanaugh’s three. The two Trump nominees agreed with each other in 88% of argued cases in the 2019 term but only 70% in the 2018 term.
Creating or avoiding chaos
One reason for their disagreements: While Kavanaugh hews to a cautious jurisprudence respectful of precedents, Gorsuch often votes with the court’s most conservative or most liberal justices, depending on the issue.
“Gorsuch is undeterred by criticism. He is ruthlessly independent,” said Josh Blackman, an associate professor at South Texas College of Law in Houston who follows the Supreme Court closely. “He has a backbone of steel.”
Kavanaugh is more deferential to his colleagues and the lawyers who argue cases, and he often writes separately to point out worthy arguments on both sides. That’s in keeping with his frequent references to a “team of nine” during his contentious 2018 confirmation hearings, when an accusation of decades-old sexual assault that he denied nearly derailed his nomination.
The court’s junior justice also frets openly about the potential consequences of the court’s rulings, a word he uses frequently. During oral argument in May, he lauded the “avoid-chaos principle of judging” in a case that unsuccessfully challenged states’ rules requiring presidential electors to support the winner of the popular vote.
Davis said Kavanaugh is “more concerned about strict adherence to precedent and the institution of the court. Justice Gorsuch is more concerned about getting the law right and letting the chips fall where they may.”
The two justices’ different styles and approaches to the law often lead them to opposite conclusions. In the 2018 term, for instance, Gorsuch aligned most closely with Associate Justice Clarence Thomas, the court’s most conservative member. Kavanaugh, meanwhile, voted most often with Roberts.
While Thomas and Associate Justice Samuel Alito rarely disappoint conservatives, Gorsuch did that twice in recent weeks. Earlier in the term, Kavanaugh voted with Roberts and the four liberal justices in two cases affecting gun rights and the environment.
In the Second Amendment case, the court issued an unsigned opinion declaring a New York City restriction on transporting guns moot after it was rescinded. Kavanaugh agreed with the decision, while Gorsuch, Thomas and Alito dissented.
In the environmental case, Kavanaugh and Roberts joined the liberals in refusing to ease a regulatory burden on industries that pollute lakes, rivers and oceans indirectly. Again, Gorsuch joined the dissenters.
John Malcolm, vice president at the conservative Heritage Foundation, which helped Trump assemble his early lists of potential high court nominees, said both justices approach legal questions appropriately.
Even so, he said, “They may not be reliable in coming up with an outcome that will be pleasing to movement conservatives.”
His two nominees’ independent streaks could lead Trump to seek a strict conservative if he gets a third chance. The two leading candidates, most conservatives agree, are federal appeals court judges Amul Thapar, 51, of Kentucky and Amy Coney Barrett, 48, of Indiana.
One case to watch closely is next term’s third existential challenge to the Affordable Care Act, which the Supreme Court has upheld twice before. Texas and other conservative states, backed by the Trump administration, argue that the law cannot stand because Congress in 2017 eliminated a crucial tax penalty for individuals who lack insurance.
Gorsuch might agree with that theory as a textualist and libertarian, while Kavanaugh has a history from the U.S. Court of Appeals for the District of Columbia Circuit that cuts both ways. He dissented in 2011 from an appeals court ruling upholding the law – but only on procedural grounds.
“We’re courts of judicial restraint,” Kavanaugh said during oral argument. “It’s a delicate act to declare an act of Congress unconstitutional.” Later, during his 2018 confirmation hearing, he said, “I expressed my respect for the congressional goal in that legislation.”
Gorsuch has been more eager than Kavanaugh to add new cases to the court’s docket. He dissented five times in the past two years when the court refused to take a case, while Kavanaugh did so just twice, according to statistics kept by Adam Feldman for his Empirical SCOTUS blog.
On the last day of the 2019 term, Gorsuch again parted ways with his conservative colleagues in the Native American territory case.
“We proceed well aware of the potential for cost and conflict around jurisdictional boundaries, especially ones that have gone unappreciated for so long,” he wrote. “But it is unclear why pessimism should rule the day.”
Roberts, writing his only dissent of the term and joined by Kavanaugh, said the decision placing 1.8 million residents on Native American land “profoundly destabilized the governance of eastern Oklahoma.”
To Davis, it was an illustration that Kavanaugh believes in “a conservative, incremental, more cautious approach to the law.”
As for Gorsuch, he said, “I don’t think half of Oklahoma would think that.”
This article originally appeared on USA TODAY: Brett Kavanaugh, Neil Gorsuch: Trump’s justices show independence