Bench Memos

Law & the Courts

A Rush to Judgment on the Newest Justice

Judge Brett Kavanaugh returns from a break in his Supreme Court confirmation hearing on Capitol Hill, September 27, 2018. (Win McNamee/Pool via Reuters)

A piece by Richard Wolf that ran over the weekend in USA Today posits that the anticipated “conservative takeover of the Supreme Court . . . has been stalled by a budding bromance between” Chief Justice John Roberts and the Court’s newest member, Brett Kavanaugh. The author’s principal evidence: Their disagreement in only one of 25 cases that have been decided so far this term with Kavanaugh’s participation. (The newest justice has not participated in six other cases decided to date.) They parted ways in Stokeling v. United States. There Roberts joined Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan in dissent from the majority’s holding that the Armed Career Criminal Act includes a robbery offense that requires a defendant to have overcome a victim’s resistance.

If that much agreement sounds remarkable, consider that most of those cases were decided unanimously and that no pair of justices disagreed with each other on the Court’s judgment over the course of those 25 cases more than nine times. For some perspective on just how early it still is, note that the Court’s previous term had 19 decisions in which the justices split 5–4. Most of this term’s decisions have yet to be issued, and the highest concentration of sharply divided ones tends to come later in the term.

Wolf also omits to mention that Kavanaugh agreed with Justice Samuel Alito in all but two of those decisions — just one more disagreement than Roberts. Are two disagreements enough to disqualify two judges for “bromance” status? If so, don’t look too closely. In the Court’s 6–2 decision in Lorenzo v. Securities and Exchange Commission, Roberts agreed with the Court’s finding of liability for securities fraud by a disseminator of false statements who had not “made” the statements by the Court’s definition. Kavanaugh heard the same case while he sat on the D.C. Circuit and reached the opposite conclusion in dissent. For that reason, he did not participate when the case reached the Supreme Court, so that disagreement did not factor into Wolf’s count. Neither did Kavanaugh’s agreement with the two justices who, like him at the previous stage of appeal, dissented in Lorenzo: Clarence Thomas and Neil Gorsuch.

Wolf further contends that the supposed “partnership” between the two justices extends to the Court’s orders, “though less reliably.” The “less reliably” part is as much an understatement as his overall conclusion is an overstatement. On at least four occasions, all involving cases with ideologically divisive subject matter, Kavanaugh set himself apart from Roberts and took the same position with respect to orders regarding stays or denials of certiorari as Thomas, Alito, and/or Gorsuch:

  • In Trump v. E. Bay Sanctuary Cov., Kavanaugh joined Thomas, Alito, and Gorsuch in dissenting from the Court’s refusal to lift a lower court injunction prohibiting the Trump administration from immediately reinstating its policy of denying asylum to migrants who illegally cross the Mexican border.
  • In June Medical Services, L.L.C. v. Gee, Kavanaugh and the same three colleagues disagreed with the Court’s order blocking the enforcement of Louisiana’s law requiring hospital admitting privileges for doctors who perform abortions, and Kavanaugh wrote an opinion explaining his position.
  • In Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation, a case in which the Court denied certiorari, Kavanaugh wrote an opinion joined by Alito and Gorsuch to note that although there were procedural reasons not to take the appeal, New Jersey’s prohibition of historic preservation funds to religious buildings simply because they are religious “is in serious tension with this Court’s religious equality precedents.”
  • When the Court denied certiorari in another case, Kennedy v. Bremerton School District, which involved a public high school football coach who claimed he was fired for kneeling on the field to pray after games, Kavanaugh, Thomas, and Gorsuch joined an opinion by Alito explaining their reasoning. While the case involved unresolved factual questions, which counseled against review of the unsuccessful coach’s appeal from the Ninth Circuit, Alito’s opinion went out of its way to say that “the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”

While such cases involve procedural issues as opposed to rulings on the merits, it is noteworthy that each case distinguishing Kavanaugh from Roberts found the junior justice taking a position to the right of the chief justice, never the other way around.

The historical reality is that even a completed first term of a Supreme Court justice is often insufficient to assess performance. Back in the day when the Court regularly decided over 100 cases per term, Chief Justice Warren Burger and Justice Harry Blackmun initially were known as the “Minnesota Twins” for their high rate of agreement as perceived conservatives during their first term serving together, but over the years, the two grew apart as Blackmun veered far to the left.

A full term on the Court is a short period to make generalizations about judicial performance. So how could any historically aware analysis reach conclusions before the term’s halfway mark?

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