Jus­tices defy ex­pec­ta­tions of sharp ide­o­log­i­cal di­vide

Rul­ings show lit­tle con­ser­va­tive sway

The Washington Times Weekly - - National - BY ALEX SWOYER

The Supreme Court last month punc­tured the il­lu­sion of a hard-right con­ser­va­tive bench deeply di­vided along ide­o­log­i­cal lines, with a se­ries of sur­pris­ing rul­ings that de­fied easy cat­e­go­riza­tion.

Chief Jus­tice John G. Roberts Jr., brav­ing crit­i­cism and even talk of im­peach­ment from some on the right, sided with the court’s four Demo­cratic ap­pointees to stymie one of Pres­i­dent Trump’s big­gest pri­or­i­ties.

Jus­tice Neil M. Gor­such found com­mon cause with the Democrats on a se­ries of crim­i­nal jus­tice rul­ings.

Yet there were mo­ments of strik­ing unity, in­clud­ing on a sig­nif­i­cant re­li­gious lib­erty case in which two of the Demo­cratic ap­pointees sided with the Repub­li­can ap­pointees to up­hold a cross memo­rial on pub­lic land.

A term that be­gan with the swear­ing-in of Jus­tice Brett M. Ka­vanaugh, who Democrats feared would ce­ment a con­ser­va­tive ma­jor­ity, ended with a flurry of de­ci­sions that defy that la­bel.

Repub­li­cans who dreamed of a court poised to over­turn long­time lib­eral prece­dent are now far less cer­tain, while Democrats who com­plain about a court em­brac­ing Mr. Trump at every turn had that ar­gu­ment re­duced to rub­ble.

“Con­ser­va­tives shouldn’t be dream­ing of a revo­lu­tion­ary court that will over­turn Roe, and on the flip slide lib­er­als re­ally have no right to be speak­ing about this arch-con­ser­va­tive ma­jor­ity that has to be re­strained,” said Curt Levey, pres­i­dent of the Com­mit­tee for Jus­tice, re­fer­ring to Roe v. Wade, the 1973 Supreme Court rul­ing that le­gal­ized abor­tion.

One year af­ter the re­tire­ment of Jus­tice An­thony M. Kennedy, who used to be the con­sen­sus pick for the nine-jus­tice-court’s cen­ter, it’s no longer clear that there is a sin­gle ful­crum.

Chief Jus­tice Roberts staked his claim with his de­ci­sion, sid­ing with the Demo­cratic ap­pointees, to halt the Trump ad­min­is­tra­tion’s rush to add a ci­ti­zen­ship ques­tion to the 2020 cen­sus.

Yet he also led the court in rul­ing that fed­eral judges should not po­lice po­lit­i­cal ger­ry­man­der­ing fights in the states. The de­ci­sion epit­o­mized ju­di­cial re­straint and drew jeers from lib­er­als who had urged the court to take the play­ing field on the hot-but­ton is­sue.

Over the past months, Chief Jus­tice Roberts also sided with the Demo­cratic ap­pointees to keep a hold on one of Mr. Trump’s border asy­lum crack­down poli­cies and to pre­serve fed­eral agen­cies’ de­ci­sion­mak­ing pow­ers.

“Roberts isn’t mo­ti­vated by any sort of ide­ol­ogy I can pin­point,” said Josh Black­man, a pro­fes­sor at South Texas Col­lege of Law. “He is squarely in the cen­ter.”

Jus­tice Neil M. Gor­such also could lay claim to the cen­ter po­si­tion when it comes to crim­i­nal jus­tice and statu­tory in­ter­pre­ta­tion. In a se­ries of cases, he sided with the Demo­cratic ap­pointees to shoot down laws dol­ing out manda­tory sen­tenc­ing or pun­ish­ment.

He sided with the Demo­cratic ap­pointees in four 5-4 de­ci­sions dur­ing the nine-month term.

“He’s re­ally found his own voice. You can call him lib­er­tar­ian,” said Ilya Shapiro, se­nior fel­low at the Cato In­sti­tute.

Jus­tice Ka­vanaugh, mean­while, was the most con­cil­ia­tory of the nine. He sided with the ma­jor­ity 91% of the time, said Adam Feld­man, founder of the Em­pir­i­cal SCOTUS blog.

In one key move, Jus­tice Ka­vanaugh, along with Chief Jus­tice Roberts, voted not to take a case to de­cide whether states can block Med­i­caid funds from go­ing to Planned Par­ent­hood. They sided with the Demo­cratic ap­pointees on that.

Mr. Feld­man said it’s too early to tell where ex­actly on the con­ser­va­tive spec­trum Jus­tice Ka­vanaugh would fall, though he noted that Jus­tice Ka­vanaugh was usu­ally in the com­pany of the other Repub­li­can-ap­pointed jus­tices when de­cid­ing close cases.

“There is ev­i­dence that he is go­ing to be a pretty solid con­ser­va­tive vote,” the scholar said.

Jus­tice Gor­such, aside from the statu­tory and crim­i­nal sen­tenc­ing cases, struck com­mon ground with Jus­tice Clarence Thomas more than any other mem­ber of the court, at 81% of the time, ac­cord­ing to SCOTUSblog’s stat pack.

Jus­tice Thomas agreed with Jus­tice Sa­muel A. Al­ito Jr. 85% of the time. It’s a sig­nif­i­cant devel­op­ment for Jus­tice Thomas, who of­ten used to write solo opin­ions.

“Thomas is liv­ing his best life,” said Mr. Black­man. “He’s got a crew.”

Twenty-one of the cases the court heard over the term were de­cided by 5-4 or 5-3 votes, but The As­so­ci­ated Press said just seven of those were the Repub­li­can ap­pointees in the ma­jor­ity and the Demo­cratic picks in the mi­nor­ity. Demo­cratic ap­pointees won one Repub­li­can pick to claim the ma­jor­ity in 10 cases.

In other cases, an an­tic­i­pated ide­o­log­i­cal split didn’t ap­pear. One was the rul­ing al­low­ing the Peace Cross, a World War I memo­rial on pub­lic land in Bladens­burg, Mary­land, to re­main.

Jus­tices Stephen G. Breyer and Elena Ka­gan sided with the five Repub­li­can ap­pointees to pre­serve the cross.


The Supreme Court closed its term with much sur­prise from Jus­tice Neil M. Gor­such.

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