SCOTUS: Roberts and Kavanaugh Decisions Show Ideological Independence
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By James J. Barney
Associate Professor of Legal Studies, School of Security and Global Studies, American Military University
President Trump’s selection of Brett Kavanaugh to replace retiring Justice Anthony Kennedy ignited the most contentious Supreme Court nomination process since Justice Clarence Thomas’ 1991 hearings.
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During the confirmation process, some commentators said Kavanaugh’s confirmation would shift the balance of power on the Court in a decidedly conservative direction. Other commentators noted that the nomination probably would not have much immediate impact because Kavanaugh was replacing Justice Kennedy, who for the most part sided with the other conservative Justices.
While it is premature to assess the long-term impact of Justice Kavanaugh and his actions on the Court, a review of his decisions of the 2018-2019 term reveals several developments worthy of study.
The past term was widely labeled as a purposefully muted Supreme Court term devoid of blockbuster decisions.
Among Court developments were:
- The perceived emergence of Chief Justice John Roberts as the new swing vote.
- The first decisions of Justice Kavanaugh
- Evidence of Justice Neil Gorsuch’s apparent independence from the so-called conservative bloc in the realm of criminal law.
Is Chief Justice John Roberts the New Swing Vote?
Over the past months, some commentators, including Reuters’ Lawrence Hurley, have written that Chief Justice Roberts has replaced Justice Kennedy as the pivotal swing vote on the Supreme Court. Admittedly, in prior articles, I also engaged in speculation about Roberts’ future role in high-profile and continuous cases like those dealing with abortion, based on his votes from the 2018-2019 term.
However, this type of commentary draws upon a series of problematic assumptions. The popular narrative that depicts Roberts as the new swing vote focuses on a handful of cases in which he cast the fifth and deciding vote. That ignores the much larger number of cases when Roberts found himself voting along with Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer, often called the liberal Justices.
Roberts Cast the Fifth and Deciding Vote in Several Closely Watched Cases
In the 2018-2019 term, Roberts cast the fifth and deciding vote in several closely watched cases. These included a case that addressed whether the Department of Commerce provided a non-discriminatory reason for including a proposed citizenship question on the 2020 census and a gerrymandering case about whether states can divide their voting districts by political ideology or party affiliation.
The Chief Justice’s votes in these cases were clear evidence of his emergence as the Court’s swing vote. However, this type of analysis could be considered focusing on the proverbial tree while losing sight of the forest.
Characterizing Roberts as Justice Kennedy’s swing vote replacement is based on an improper but popular notion that Justices vote in a partisan and predictable manner. Despite the widespread notion of five conservative and four liberal Justices who all vote in certain patterns, the Supreme Court’s actual voting statistics undermine that perception.
To illustrate this point, it is necessary to closely examine the votes during the last term when the Supreme Court decided 65 cases. According to the SCOTUS blog, the Court decided 24 of those cases by 9-0 or 8-0 votes. Another five cases were decided by 8-1 or 7-1 votes, and another seven by 7-2 or 6-2 counts. Thus, in the majority of cases, the Justices of the Supreme Court found common ground. Also, the voting patterns comport with historical trends.
Despite the commentary that predicted the domination of the five so-called conservative Justices, 5-4 decisions occurred in only 32% of those 65 decisions. Of the 5-4 decisions, only 33% were decided by the so-called five conservative Justices with the four so-called liberal Justices in the dissent. Thus, in only a handful of the 65 decisions did the five so-called conservatives band together against the four so-called liberals.
Moreover, Chief Justice Roberts found himself the deciding vote in just a few cases. Thus, given the small sample size of cases when he cast the fifth and deciding vote, it is premature to assess Chief Justice Roberts’ role in the post-Kennedy era.
Early Observations on Justice Kavanaugh’s Impact on the Court
Time magazine’s Tessa Berenson is one of several commentators who have concluded that Justice Kavanaugh made his influence felt on the Court in just his first year. During the 2018-2019 term, he authored seven decisions in which he was the fifth vote. Among them, were two high-profile cases, Apple Inc. v. Pepper and Manhattan Community Access Corp. v. Halleck.
Commentators have focused on Kavanaugh’s decision in Apple Inc. v. Pepper where Kavanaugh sided with Justices Ginsburg, Breyer, Sotomayor and Kagan. The plaintiffs held “that iPhone owners who purchase apps from Apple’s App Store are ‘direct purchasers’ from Apple and may sue Apple for alleged monopolization of the retail market for iPhone apps in violation of antitrust laws.”
Standing is a requirement for a party to bring a lawsuit in which the plaintiff must have suffered an injury. In Manhattan Community Access Corp. v. Halleck, Justice Kavanaugh aligned with Roberts, Gorsuch, Alito and Thomas, and held that a public access cable television channel with a relationship to New York City was not a state actor and therefore was not subject to First Amendment constraints on its editorial discretion.
Small Number of Votes Makes It Difficult to Predict Future Impact of Kavanaugh
Despite the initial rush to assess Justice Kavanaugh’s impact on the Court, the extremely small number of votes he has cast so far makes it is difficult to predict future trends. Kavanaugh has authored five decisions in which he sided with the Justices from across the perceived ideological spectrum.
For example, he drafted three 9 to 0 decisions (Rimini Street Inc. v. Oracle USA Inc., Quarles v. United States, and Henry Schein Inc. v. Archer and White Sales Inc.). He also authored one 7 to 2 decision (Flowers v. Mississippi), and one 6 to 3 decision (Air and Liquid Systems Corp. v. DeVries). Thus, Supreme Court watchers will likely have to continue to monitor Justice Kavanaugh’s voting patterns in succeeding terms of the Court to decide his ideological voting patterns.
Gorsuch’s Criminal Law Decisions Illustrate the Dangers of Labeling Justices
It’s also wise not to read too much into Chief Justice Roberts’ role after Justice Kennedy’s retirement. However, Justice Gorsuch’s decisions in several criminal cases during the term hint at the emergence of a potential voting pattern that challenges the traditional narrative of dueling conservative and liberal blocs.
In three criminal law cases, Justice Gorsuch disagreed with several Justices who are often labeled as conservative. For example, in Gamble v. U.S., Justice Gorsuch wrote a stinging dissent, criticizing the majority’s interpretation of the dual sovereignty exception to the double jeopardy rule. In Gamble, Gorsuch wrote that the prosecution of defendants by two separate governmental entities (state and federal) for the same actions twice potentially subjects vulnerable defendants to multiple prosecutions in a manner subject to abuse.
In two other decisions that he authored, Gorsuch cast the fifth and deciding vote in United States v. Davis and United States v. Haymond. In these decisions, he found himself aligned with several Justices often characterized as the so-called liberal Justices. In Hammond, writing for the plurality of the Court, Justice Gorsuch struck down a statute that allowed judges to send convicted sex offenders back to prison for extended sentences if they committed certain crimes. In United States v. Davis, he struck down as constitutionally vague a statute that increased sentences for so-called violent crimes committed using a firearm.
What conclusion can be drawn from Justice Gorsuch’s decisions in these three criminal law cases? They illustrate the danger of labeling Justices as conservative or liberal. Moreover, Justice Gorsuch’s opinions in the three criminal cases have also led some commentators to conclude that following Kavanaugh’s confirmation he has staked out a degree of independence. However, at this time, with the small sample size of cases, it is difficult to determine whether Justice Gorsuch’s criminal law opinions represent a trend that will continue in the 2019-2020 term.
Lackluster Term Leaves Court Watchers Waiting for Further Developments
The 2018-2019 term disappointed Supreme Court watchers who sought a clear direction for the Court going forward. However, the term did provide hints that the two Trump-appointed Justices may possess independent streaks that could complicate predicting their future voting patterns. Moreover, talk of Chief Justice Roberts as the new “swing vote,” while common on Sunday morning talk shows, may have been overstated.
Indeed, at this point, voting statistics from the term do not fully support that “swing vote” notion. While there is a possibility that Roberts will assert firmer leadership in the future, it is premature to render any assessment of his role in the post-Justice Kennedy era. Finally, the possibility of a future vacancy on the Supreme Court before or after the 2020 election raises the possibility that any developments ascertainable during the 2018-2019 term may prove short-lived.
About the Author
James Barney is an Associate Professor of Legal Studies in the School of Security and Global Studies. In addition to possessing a J.D., James has several master’s degrees, including in American foreign policy. He is currently completing his Ph.D. in History. James serves as one of the faculty advisors of the Phi Alpha Delta law fraternity as well as the Model United Nations Club and acts as the pre-law advisor at AMU. Currently, he is working on a year-long research project that focuses on Justice Kavanaugh’s impact on the Supreme Court.
James is licensed to practice law in New York, New Jersey, Alabama and the District of Columbia. Over the past several years, he has served in various roles at debating and moot trial competitions in New York and Washington, D.C. In 2019, James will co-coach the APUS mock trial team at Phi Alpha Delta’s annual mock trial competition in Arlington, Virginia and will also serve as one of the faculty advisors for the school’s Model UN delegation to the National Model United Nations-Washington D.C. conference. He is currently working on a project to launch a study-abroad trip to London in 2020.