Last week’s bombshell announcement that U.S. Supreme Court Justice Anthony Kennedy is retiring means that the most important thing about the just-ended Supreme Court term wasn’t the consequential and (especially toward the end, as usual) controversial cases that were decided.
What mattered most was what the recent term showed us about the kind of justice Neil Gorsuch is turning out to be.
That’s because, before this long, hot political summer is over, President Donald Trump will have a chance to nominate a second high court member. And he’ll be replacing, in Kennedy, a famed, key “swing” vote on the court — on abortion, money in politics, gay rights, free speech and much more.
Gorsuch, Trump’s first high court nominee and for now, at 50, the court’s youngest member, could remain on the bench into the second half of this century, affecting national life as much — or at least for as long — as anything else the Age of Trump produces. And now we know that he won’t likely be the only Trump nominee there.
So what has Trump given us in Justice Gorsuch? The president promised to nominate a replacement for the late Antonin Scalia who would carry on in the conservative icon’s tradition, and in many ways Gorsuch appears to be living up to that. Like Scalia, he is often more complex and independent than either liberal critics or conservative admirers might expect.
Certainly, Gorsuch in his first full term was solidly in the conservative wing of the court, generally joining Chief Justice John Roberts and other Republican appointees — Anthony Kennedy, Samuel Alito and Clarence Thomas — in the most contentious and closely watched cases, from the court’s narrow ruling in favor of a Colorado baker who refused to design a wedding cake for a same-sex couple, to its upholding of Trump’s travel ban, to its decision that unions extracting “fair share” dues from nonmembers violates First Amendment rights.
But such heavily discussed cases, sharply dividing the justices along predictable ideological lines, are far from the whole of the court’s work. And across the wide range of decisions, Gorsuch proved something of a centrist in the context of this court and this term. His conservatism, meantime, is not of the cautious variety. He is prepared to overturn long-standing legal precedent to achieve “judicial restraint” as he understands it.
Let’s put up some numbers, as the sports commentators say. The excellent SCOTUSblog keeps major-league-caliber statistics on the court, including voting relationships — the overall percentage of the time each justice agrees on rulings with each colleague.
For example, Roberts agreed most often this term with Kennedy — 90 percent of the time. Roberts agreed least often with Justice Sonia Sotomayor — 65 percent of the time.
I like to focus on the size of what we could call each justice’s wingspan — their degree of like-mindedness with certain colleagues vs. their degree of habitual disagreement with others — as a measure of their relative tribal and ideological tendencies.
By this reckoning, the smallish 25-percentage-point gap between Roberts’ highest and lowest levels of agreement marks the chief justice as the court’s most “agreeable” member — the statistical centrist among these jurists.
The most polarized justice, measured this way, is Sotomayor, who agreed with Justice Ruth Bader Ginsburg 96 percent of the time, but with Alito just 45 percent of the time — for a 51-percentage-point spread.
Alito is close behind on the polarization scale, with a 49-percentage-point gap between his highest and lowest agreement rates (Thomas and Sotomayor, respectively).
And Gorsuch? His 32-percentage-point spread (Kennedy is his most like-minded colleague, Sotomayor his least) places him closer to Roberts and Kennedy, the swing votes on this court, than to any of the others. (His 85 percent agreement with Kennedy is the lowest top agreement rate for any justice.)
Separation of powers
Gorsuch’s somewhat quirky independence was particularly apparent in three cases. So was his special concern to protect and defend the constitutional separation of powers — the proper boundaries of authority between Congress, executive branch agencies and the courts. And so was his willingness to reconsider long-standing legal doctrines to restore the balance.
• In Sessions vs. Dimaya (which I wrote about in April), Gorsuch parted company with his conservative colleagues to give a criminal immigrant a reprieve from deportation. Justice Elena Kagan wrote for the majority that the legal provision covering the case was too vague in the context of such a severe penalty as deportation.
Gorsuch wrote separately to explain that he would go further and rule that the Constitution forbids all excessively vague statutes that leave it to courts, prosecutors or law enforcement officials to define what the law deems worthy of punishment. Only “an open … debate among … diverse … elected representatives” can legitimize “restricting liberty,” he wrote.
• The same zeal for seeing elected bodies make the decisions the Constitution assigns to them led Gorsuch to join another ideologically mixed 5-4 majority in South Dakota vs. Wayfair. Kennedy’s majority opinion ruled that states can henceforth impose sales taxes on out-of-state online retailers, overruling past high court interpretations of the long-standing “dormant Commerce Clause” doctrine that have become outdated with changing technology.
Gorsuch again would go further and re-examine the underlying doctrine itself, which says states generally are barred from regulating interstate commerce. Gorsuch seems to think Congress can and should overrule states on interstate economic policy where it sees fit, but courts should stay out of it.
• In Carpenter vs. United States, still another important 5-4 case that broke up the familiar alignments of liberal and conservative justices, Gorsuch parted company with everybody. Roberts ruled that law enforcement generally needs a warrant to use cellphone location records in a criminal investigation, overruling the long-standing “third party” doctrine, which said people lost their “reasonable expectation of privacy” and thus their constitutional protection against “unreasonable searches” regarding any information they share with any third party.
Gorsuch, rather irregularly, dissented from this ruling even though he agrees warrants are generally required for cellphone records. But he would, yet again, go further, to “vindicate the full protections of the Fourth Amendment” by ditching the whole “reasonable expectations” concept and simply holding that the government needs a warrant to search anything that belongs to you.
As this sampling may suggest, in an era when the poor performance of many parts of government is so distressing, the entire Supreme Court — not only, but also not least, its newest member — is more thoughtful and impressive than politicized debates over its highest-profile cases often imply.
Food for thought as a season of strife over the next new justice commences.
D.J. Tice is at Doug.Tice@startribune.com.