Law & the Courts

Gorsuch and Kavanaugh Stake Out Their Independence from Trump

Supreme Court justices Neil Gorsuch and Brett Kavanaugh at the Capitol in Washington, D.C. February 5, 2019. (Doug Mills/Pool via Reuters)
In narrowly argued decisions, they have separated themselves from this president but carefully guarded presidential authority for decades to come.

Neil Gorsuch and Brett Kavanaugh, perhaps more than any other Supreme Court justices in modern history, are closely connected to the president who appointed them. Gorsuch got his seat after Republicans stonewalled the nomination of Judge Merrick Garland and then Trump unexpectedly prevailed in the 2016 election. And any other president probably would have withdrawn his nominee after Christine Blasey Ford’s allegations, but Trump dug deep, and Kavanaugh crossed the finish line. That past cannot be erased, but a new prologue is being written. Gorsuch and Kavanaugh know full well that Trump’s tenure is limited. These Gen-Xers may serve nearly half a century, long after the memory of President Donald J. Trump is relegated to the history books. And after the July 4 weekend, the two Trump appointees formally declared their independence from him.

On the final day of the Supreme Court’s term, Gorsuch and Kavanaugh voted against Trump in the New York tax-return case. The vote was 7–2. Well, sort of. Gorsuch and Kavanaugh did not join Chief Justice John Roberts’s majority opinion, which held that the president was not entitled to special protections against the subpoena. Nor did they join the dissents of Justices Clarence Thomas and Samuel Alito, both of whom concluded that the subpoenas were unconstitutional. Instead, Kavanaugh and Gorsuch wrote a separate concurrence, which walked a narrow tightrope between the Court’s two poles. On paper at least, they narrowly ruled against Trump. They likely could not be seen as voting for the president who appointed them. But their opinion laid the foundation to broadly expand the power of the presidency in the future.

This term the Supreme Court decided two cases concerning Trump’s tax returns. First, in Trump v. Mazars, three committees of the House of Representatives subpoenaed the president’s tax returns and other records. The Court unanimously ruled against the committees, which failed to provide a detailed enough reason to request the returns. In the second case, Trump v. Vance, the New York district attorney subpoenaed Trump’s financial records as part of a broad criminal investigation into Trump-related matters. Roberts wrote the majority opinion, holding that the Constitution did not block the subpoena. He was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. In dissent, Thomas and Alito would have dismissed the case outright. They found that the Constitution affords the president special protections from subpoenas.

How did the two Trump appointees vote? Superficially, the vote was 7–2. But that count is misleading. Gorsuch and Kavanaugh refused to join the chief’s analysis, which substantially weakened the president’s prerogatives. They are tacked onto the five-member majority only because they agreed to send the case back to the lower court rather than dismiss it outright. But on the merits, Gorsuch and Kavanaugh were much closer to the dissenters than to the majority.

The duo wrote a brief, four-page concurrence that would have adopted the test from United States v. Nixon (1974). In that Watergate-era case, the Burger Court unanimously ruled that the special prosecutor had established a “demonstrated, specific need” for the secret Oval Office recordings. Roberts, however, expressly rejected the Nixon test. In dissent, Alito disagreed, finding that the district attorney’s subpoena lacked a “demonstrated, specific need” for the returns.

Did Gorsuch and Kavanaugh determine that the Nixon test was satisfied? Who knows? Their opinion ended abruptly. Rather, they merely posed a series of hypothetical questions about how courts will decide “future cases” in “future years and decades.” But what about this case, today? There was no clear resolution.

I view this concurrence as something of a compromise. On the one hand, Gorsuch and Kavanaugh generally favor a broad conception of executive power. The two junior members of the Court were not prepared to join the chief’s opinion, which handcuffs the president’s autonomy and alters the balance of authority between the federal and state governments.

On the other hand, in this case too, Gorsuch and Kavanaugh likely could not be seen as voting in favor of the president who appointed them — especially after their contentious confirmations. They needed to stand in the same shoes as the Nixon appointees who ruled against President Nixon four decades ago. Indeed, during his confirmation hearing, Kavanaugh praised Chief Justice Warren Burger, “who had been appointed by President Nixon” and “brought the Court together in a unanimous decision.” At the time, Kavanaugh knew that he could be called on to decide the validity of a subpoena against President Trump — whether it came from Robert Mueller, the House of Representatives, or a state prosecutor. There were no surprises.

Kavanaugh and, I suspect, Gorsuch understood this dynamic all too well. These judges were very much attuned to how they would be judged. So they split the difference. In voting for a framework that empowered future presidents to resist subpoenas, they also cast a hyper-technical vote that allowed New York’s subpoena to be enforced against the current president. To the general public, the vote was 7–2. It was not unanimous, but this lopsided split was better than 5–4. And to Kavanaugh and Gorsuch, their short writing did not disturb the long-term constitutional equilibrium.

After the case was decided, Trump reportedly saw Gorsuch and Kavanaugh’s “votes as a betrayal” and “expressed deep anger” at his nominees. I suspect that the duo could not care less about these White House fireworks. Independence has its perks. Soon enough, Trump will be gone. But Gorsuch and Kavanaugh will be with us for some time. With their narrow decision, they managed to separate themselves from this president but carefully guarded presidential authority for decades to come.


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