The nine U.S. Supreme Court justices, including the newest justice, Brett Kavanaugh, gathered for their official group photo at the Supreme Court. (Nov. 30)
WASHINGTON – Supreme Court Associate Justice Brett Kavanaugh is starting what could be decades on the bench with a sense of caution that has put him at odds with his fellow conservatives.
Kavanaugh’s low-profile entrance has offered a distinct contrast with that of his immediate predecessor, Associate Justice Neil Gorsuch, who came on like gangbusters 20 months ago as President Donald Trump’s first addition to the court.
Kavanaugh and Gorsuch have differed on several issues during the new justice’s first 10 weeks on the bench. Although the matters were largely procedural, the cases touched on some of the biggest issues the high court faces: abortion, immigration and the environment.
In each case, only Gorsuch sided with the court’s conservative wing, while Kavanaugh – now more than two months removed from a contentious Senate confirmation battle that included a decades-old allegation of sexual assault – stuck by Chief Justice John Roberts.
“There’s a pattern here that you can’t ignore,” said Curt Levey, president of the conservative Committee for Justice. “It corresponds with our prediction for Kavanaugh, which is that he would be more like Roberts.”
The sample size is too small for conclusions, but there are reasons to believe the differences may repeat themselves as the months and years pass. Gorsuch, who replaced the conservative icon Antonin Scalia last year, and Kavanaugh, who replaced the more moderate Anthony Kennedy this year, have different styles, different priorities and different shoes to fill.
The most prominent difference between the two Trump justices came last week, when the court let stand lower court rulings that allowed Planned Parenthood patients to contest laws in Louisiana and Kansas that stripped the group’s Medicaid funds.
Gorsuch joined Associate Justices Clarence Thomas and Samuel Alito in dissent, arguing that the court should have taken up the challenge to Planned Parenthood. But four justices are needed to accept a case for oral argument; Kavanaugh joined Roberts on the other side, along with the court’s four liberal justices.
Kavanaugh’s reticence to take the case may have been less surprising than the vocal dissent from his conservative colleagues so early in his tenure, says Steven Aden, general counsel at Americans United for Life, an anti-abortion group.
Kavanaugh “may be keeping his powder dry” on cases related to abortion for now, Aden said. “It may just be that he wanted to wait and see how the issue percolates” in lower courts.
By contrast, the three other conservative associate justices appeared to say, “Hey, there’s a new sheriff in town here, and we want you to know that some of us are more motivated on cases like this than we might have been before,” Aden said.
‘Forging their own paths’
A month earlier, the court refused to block a federal court trial on the Trump administration’s plan to add a question on citizenship to the 2020 Census. Opponents were using the trial to find out the reasons for the move, which could lead to an undercount of immigrants and the loss of political and financial clout in immigrant communities.
Gorsuch joined Thomas and Alito in saying they would have halted the trial at the administration’s request. Kavanaugh, Roberts and the liberal justices did not say how they voted. The court later agreed to hear the dispute in February over what evidence can be considered.
Also in November, the court refused the Trump administration’s request to block an unusual trial in Oregon that threatened to force a change in federal climate change policies. Again, Gorsuch dissented along with Thomas, while Kavanaugh did not make his views known.
The high court made clear, however, that the trial likely could be stopped if the Justice Department asked a federal appeals court in California to intervene. Since then, both the trial and trial preparations have been halted.
Despite those examples, some Supreme Court observers say it’s too soon to tell whether the early Gorsuch-Kavanaugh comparison represents a pattern or an anomaly.
“I don’t see them as diverging so much,” said Lisa Blatt, an experienced Supreme Court litigator and a liberal who backed Kavanaugh during his Senate confirmation battle. “Each is forging and will forge their own paths, which is exactly what you would expect.”
Kavanaugh “sweats the details” of the cases that come before the court, said Jonathan Adler, a professor at Case Western Reserve University School of Law. Gorsuch, he said, “sometimes paints with a really broad brush.”
Gorsuch, 51, and Kavanaugh, 53, bring separate styles to their opposite ends of the bench. Gorsuch was opinionated from the start in April 2017: When a lawyer assured the justices that he was not “asking this court to break any new ground,” Gorsuch shot back, “No, just to continue to make it up.”
“He hit the ground running,” Adler recalled, describing Gorsuch as “more aggressive than any first-year justice that I can recall.”
Following his narrow 50-48 confirmation in October, Kavanaugh has focused on “common sense” solutions and the sanctity of Supreme Court precedents, a subject he embraced last week as “a doctrine of stability and humility that we take very seriously.”
“At this stage, Kavanaugh, like Roberts, would rather the court stay away from the most controversial issues,” said Erwin Chemerinsky, dean of the University of California’s Berkeley School of Law.
The differences between Trump’s two nominees continues a pattern that dates back several presidencies. Each of the last three presidents won confirmation of two justices in successive years, none of them perfect matches:
- Associate Justice Stephen Breyer, named by President Bill Clinton the year after Associate Justice Ruth Bader Ginsburg in 1994, is more low-key and compromising.
- Alito, named by President George W. Bush the year after Roberts in 2006, is more aggressively conservative and combative.
- Associate Justice Elena Kagan, named by President Barack Obama the year after Associate Justice Sonia Sotomayor in 2010, is more strategic and pragmatic.
“Presidential picks sometimes come in pairs, but each does his or her own thing,” Blatt said. “They are not twins.”
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