Leah Litman is an assistant professor at the University of Michigan Law School.
Of all the dynamics at play in the Supreme Court’s just-concluded term, none was more intriguing than this latest chapter in the story of Justices Neil M. Gorsuch and Brett M. Kavanaugh. Graduates of the same high school, members of the same Supreme Court clerks’ class and now fellow Supreme Court justices, the differences between their conservative philosophies — especially in the realms of criminal justice and respect for precedent — began to emerge this term. Gorsuch and Kavanaugh were always going to alter the balance of the court in ways that would reverberate for years to come. And this term revealed that their ongoing disagreements may have an unexpected impact on the court’s reputation.
It’s true that in cases with big stakes for our democracy, the five conservative justices often voted together in ways that favor the Republican Party. Most notably, they hung together in ruling that the federal courts may not interfere in drawing legislative districts, even to balance out extreme partisan gerrymanders. And the five conservatives also voted in lockstep to overturn a series of precedents on issues that tend to divide along ideological lines, among them a 40-year-old precedent that had allowed private citizens to sue states in another state’s court, and a 70-year-old line of cases that made it harder for private parties to challenge government takings of private property.
But in a series of cases, the two most recent nominees to the court diverged from one another, with Gorsuch revealing a libertarian perspective and Kavanaugh representing a vision closer to big-government conservatism.
Gorsuch wrote majority opinions in two separate cases invalidating criminal-justice statutes, in which he was joined by the four liberal justices. In one case in which the majority declared that a criminal statute Congress had written was too vague to be enforced, Chief Justice John G. Roberts Jr. assigned the dissent to Kavanaugh. The result was an opinion that highlighted Kavanaugh’s differences with his colleague. Gorsuch’s majority opinion warned of the dangers to liberty from overbroad criminal laws; Kavanaugh opened his dissent with statistics about the dangers of violent crime.
The differences between Gorsuch and Kavanaugh also reflect the two justices’ differing approaches to Supreme Court precedent. Gorsuch revealed that he is extremely comfortable with overruling the court’s prior cases, to the extent that he mocked the other justices for flinching at the opportunity to overturn an earlier precedent. And he wrote an opinion that carved out a newly fashioned exception to the doctrine of stare decisis, which generally requires the court to adhere to its prior cases.
Kavanaugh took a more traditional approach, most notably in June Medical Services v. Gee, in which he felt the need to place his vote in the context of earlier Supreme Court decisions despite his divergence from precedent. In that case, the court was asked to decide whether Louisiana could enforce a law regulating abortion providers before the court has the opportunity to decide whether to hear a challenge to the Louisiana law.
The Louisiana law in June Medical, which required abortion providers to obtain admitting privileges at hospitals within 30 miles of where they perform abortions, is the same law that the Supreme Court invalidated three years ago in a case arising out of Texas. Gorsuch would have allowed Louisiana to enforce its law, and he did not feel the need to explain his vote. Kavanaugh, however, felt compelled to argue that his vote could be reconciled with the court’s previous decisions on abortion, including the case that had invalidated the same law Louisiana enacted. Kavanaugh’s position in June Medical is still very conservative. But by comparison with Gorsuch’s more aggressive approach to precedent, both Kavanaugh and Roberts end up appearing more moderate to the general public.
The Trump administration inadvertently created another opportunity for the Supreme Court to make what to laymen might seem to be a surprising decision. The administration attempted to engineer a reasonable justification for adding a question about citizenship to the 2020 Census. The result was that in Department of Commerce v. New York, the chief justice joined the four liberal justices in concluding that the Trump administration had not adequately justified the addition of a citizenship question to the census. As Roberts cautioned, this was a “rare” case with “extensive” evidence of the administration’s dishonesty.
That laxness, not a conviction that a citizenship question is inherently out of bounds, animated the court’s decision Thursday. But in an environment where observers eager for victory are sometimes too quick to seize on encouraging signs, the census case suggests that without careful scrutiny, the Supreme Court can make conservative decisions and still get credit for showing flashes of liberalism.
But there is a difference between a split in the five-justice conservative majority and a loss for conservative principles. If this term is any evidence of what’s to come, the differences between Kavanaugh and Gorsuch may occasionally move observers to argue that the Supreme Court remains a nonpartisan institution, even as it frequently advances partisan goals.