With recent headlines that Gorsuch and Kavanaugh are not as ideologically unified as initially thought, Sara Shapiro breaks down Justice Gorsuch’s split from his fellow conservative justices.

President Trump’s two nominees to the Supreme Court each garnered significant controversy.

To quickly recap, Justice Neil Gorsuch, appointed in early 2017, is viewed by Democrats as having stolen a seat on the bench that rightfully belonged to President Obama’s nominee, Merrick Garland. The GOP senators refused to even consider Garland, based on logic stemming from faulty congressional precedent. The nomination instead fell into the current President’s lap.

President Trump’s second nominee faced no fewer claims of illegitimacy. Justice Brett Kavanaugh, who replaced Chief Justice Kennedy, was accused by multiple women of sexual assault. In the following congressional hearings, he displayed his utter disregard for female testimony as well as his quick temper. Despite the opposition’s efforts, Kavanaugh was ultimately appointed to the Court.

Justices Gorsuch and Kavanaugh, as appointees by the same administration, were expected to agree on most Supreme Court holdings. A recent article, however, indicates that the two justices have (as of May 24th) agreed on only 72.3% of decisions, which is the lowest rate for two justices who were appointed by the same president since the mid-twentieth century.

As questions about the sanctity of Roe and other hot-button issues are sure to reach the Supreme Court in the near future, it is imperative to not only understand the circumstances by which these Justices came to power, but also how they are wielding that power in the courtroom.

Gorsuch has been willing to split with the conservative majority and side with the liberal judges

In Sessions v. Dimaya (2018), Gorsuch joined the liberal four justices to hold that James Dimaya, who immigrated lawfully to the United States and who was convicted for first-degree burglary in California, could not be deported on the grounds that he had committed a violent offense because the California statute deeming that which is first-degree burglary was too vague, and thus void. Gorsuch’s opinion should not be read as a progressive move on behalf of immigrants; rather, Gorsuch believes that “vague laws invite arbitrary power.” While Kavanaugh was not yet on the bench, this case offers important insight into when Gorsuch chooses to break from the conservative judges and why he chooses to do so – here, the reason seems to be largely textual in nature.

Most unexpectedly, Justice Gorsuch sided with the liberal four in Herrera v. Wyoming (2019), an indigenous rights case. The issue involved a treaty made between the U.S. and the Crow Tribe in 1868, which ceded Western land to the United States in return for an assured right to hunt for members of the Tribe. But, in 2017, Crow Tribe member Clayvin Herrera was arrested for off-season hunting in Wyoming despite the treaty’s promised protected right to hunt. In an opinion written by Justice Sotomayor, it was declared that “The Crow Tribe’s hunting right survived Wyoming’s statehood, and the lands within Bighorn National Forest did not become categorically ‘occupied’ when set aside as a national reserve,” undermining a key facet of settler-colonial occupation. Nevertheless, the meat of the holding came down to differing opinions on invoking precedential cases on the Crow Tribe and that tract of land. Justice Gorsuch joined Justice Sotomayor’s majority opinion, while Justice Kavanaugh joined Justice Alito’s dissent.

We must not allow Gorsuch to be construed as an entirely independent-of-mind legal scholar

In Trinity Lutheran Church of Columbia Inc. v. Comer (2017), Gorsuch sided with the majority, holding that the Missouri Scrap Tire Program, which provided for playgrounds repairs through public grants, was unconstitutional. Specifically,  the provision denying grants to “any applicant owned or controlled by a church, sect, or other religious entity,” was what the Court took issue with. The Court ruled with the Church claiming that “…the department’s policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution.” Justice Gorsuch actually went so far as to write his own concurring opinion to reiterate that he disagreed with a footnote in the majority opinion that clarified that the holding in the case was applicable to cases involving playground upgrades, as he felt the footnote would restrict the applicability of the holding to other cases involving state grants to churches. Many, including Justices Ginsburg and Sotomayor, criticized this decision for violating the separation of church and state.

In perhaps one of the most famous cases decided during Justice Gorsuch’s tenure –  Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) – in which Jack Phillips, a Christian baker, was pursued by the CRC for refusing to bake a cake for the wedding of two gay men; at the time, gay marriage was still illegal in the state. Gorsuch again sided with the usual conservative suspects, ruling that the state of Colorado had severely impeded Phillips’ first amendment right to freedom of speech by requiring him to write a message on the cake that he found antithetical to his religion and by acting against Phillips’ first amendment right to freedom of religion by exhibiting “hostility to a religion or religious viewpoint.”

Perhaps garnering the most press for its visceral nature, Justice Gorsuch wrote the majority opinion in Bucklew v. Precythe, a case involving capital punishment. Bucklew argued that the lethal injection was cruel and unusual punishment, violating the eighth amendment because he had a medical condition that might, according to experts, make his death long and exceedingly painful. According to Justice Gorsuch, however, there could only be a valid eighth amendment claim, “if an inmate first identified a ‘feasible, readily implemented’ alternative procedure that would ‘significantly reduce a substantial risk of severe pain.’” Therefore, Bucklew’s death was ordered despite public outcry.

Gorsuch identifies as a legal orginialist – he is not acted as an agent of legal progressivism.

Justice Gorsuch has said he is a legal traditionalist, an originalist. He despises activist judges, having told the National Review that liberal judges have “become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide… “ When Gorsuch has sided with the liberal justices on the bench, it has been because his legal philosophy demands it, not because he is looking to fundamentally undermine the Trump administration.

Does this mean that in all potential holdings, Gorsuch will place his personal theories of law above his personal social convictions? Perhaps not. Contradictorily, Gorsuch, aside from being a traditionalist, is also a student of Finnis’ natural law tradition, which advocates that in certain and necessary circumstances justices act first on personal moral convictions. Gorsuch has also explicitly detailed his so-called personal “inviolability-of-life principle.” If he considers abortion to be one such issue about which originalism is subordinated to personal moral convictions, Gorsuch might be Roe’s greatest threat despite his demonstrated willingness to split from his conservative comrades.

The danger of Gorsuch’s legal philosophy is that it ignores context and Court precedent that evolves definitions and understandings of what rights and protections mean; fundamentally it obscures how even legal traditionalists’ personal conceptions of societal order influence their decisions.

In Trinity, Gorsuch ignored the potential applicability of the holding to requiring public governments to fund religiously-centered private schools. He ignored, as Justice Sotomayor put it: “that the government cannot…tax its citizens and turn that money over to houses of worship.” In Masterpiece, Gorsuch left out the fact that sexual orientation is not considered by the Court as being worthy of the same protection as race or religion; who is really going to say that Gorsuch’s convictions on who should lawfully and morally marry whom did not color his decision? And, in Bucklew, Gorsuch relied on anachronistic understandings of the eighth amendment rather than prescribing to the evolved definition used by the Court in more recent holdings; he also criticized federal courts for delaying Bucklew’s execution for so much time. Gorsuch expressed little sympathy that, for Bucklew, the death penalty was not just a life-ending measure, but would also cause immense and torturous pain.

So, when we say that Gorsuch has been willing to break with conservative legal ideology, we must dig further to see why and when he has chosen to do that, and why and when he might continue that pattern in the future. I remain rather unhopeful that he will increasingly wield law to protect America’s vulnerable and marginalized communities, but I do wish to be proven wrong.

Sara Shapiro

Sara Shapiro is a Generation Z Voice at The Pavlovic Today. Her interests include congressional investigations, youth social activism, public interest law, environmental justice, and reproductive justice....