Supreme Court

Kavanaugh v. Gorsuch

President Trump's two Supreme Court nominees have their differences.

|The Volokh Conspiracy |

This morning's New York Times features a front-page story by Adam Liptak noting that President Trump's two Supreme Court nominees—Justices Neil Gorsuch and Brett Kavanaugh—disagree more than one might expect. He writes:

Both justices lean right, but they are revealing themselves to be different kinds of conservatives. Justice Gorsuch has a folksy demeanor and a flashy writing style, and he tends to vote with Justices Clarence Thomas and Samuel A. Alito Jr., the court's most conservative members.

Justice Kavanaugh is, for now at least, more cautious and workmanlike. He has been in the majority more often than any other justice so far this term, often allied with Chief Justice John G. Roberts Jr., who is at the ideological center of the current court. . . .

The differences between the two justices are not only stylistic, as a March decision in a maritime case illustrated. Writing for the majority, Justice Kavanaugh announced a three-part test to determine when manufacturers may be sued over the injuries their products played a role in causing. In dissent, Justice Gorsuch said he preferred a bright-line rule to a fuzzy test that he said created uncertainty and unfairness.

As if to prove Liptak's point, today the Supreme Court decided Apple Inc. v. Pepper, an antitrust case concerning whether iPhone owners are direct purchasers for the purposes of antitrust law who are able to sue Apple for alleged monopolization. In a 5-4 decision, the Court ruled in favor of the plaintiffs. Justice Kavanaugh wrote the majority opinion (joined by the Court's liberal justices), while Justice Gorsuch wrote the dissent.

That's not all. The Court GVRed (granted, vacated and remanded) Myers v. United States, an Armed Career Criminal Act (ACCA) case. This was also 5-4. This time, it was Justice Gorsuch who joined the Court's liberals, while Justice Kavanaugh joined the Chief Justice's dissent.

Also today, Justice Kavanaugh joined Justice Alito's dissent from denial of certiorari in Dahne v. Richey. Justice Gorsuch did not. At the same time, Justice Gorsuch joined Justice Alito's denial of the Court's grant of a stay in Murphy v. Collier, and Justice Thomas's opinion concurring in the denial of certiorari in Price v. Dunn. Justice Kavanaugh did not.

There is no question that both Justices share a generally conservative jurisprudence, and are likely to vote together in many important cases (as they did today in another 5-4 decision, Franchise Tax Board of California v. Hyatt), but they are anything but clones of one another. They differ on many issues before the Court today, and are likely to do so again in the future.

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  1. What conservative principles are involved in statutory interpretation cases like antitrust or Armed Career Criminal Act?

    These kind of cases reveal nothing important.

    1. I can’t say I’ve done the research but it has seemed that generally conservatives have been on the businesses side in anti-trust cases while liberals on the consumers. At least as much as most of the issues that generally go “party line.”

      1. In my opinion, there is very little about anti-trust law that is genuinely pro consumer, and nothing at all genuinely pro-consumer about advocates of heavy enforcement of anti-trust law.

        1. But there is a LOT about anti-trust law that is even MORE important to individuals than their small ability to live a bit higher standard of material consumerism.

          It is about the allocation of power between individuals and institutions, and to the degree you see the US constitution and the US independence movement as a Limitation on both Kings and Church and all group institutions at the time ( standing armies, indentured servitude ! (against banks rights to indenture by debt), the postal service guaranteeing (a socialist ?) access to distribution of communication?

          The Revolution and the Constitution safegaurds individuals against control by any institution that can gain control of them by contract or authority, not all authority coming from the government itself directly.

          Anti Trust is about the freedom of The Yeoman Farmer vs exploitation of evil bands of people forming institutions that the yeoman is powerless against.

          1. Bull. all that you use to justify anti-trust law, was long gone into the mists of history by the time the first anti-trust laws in the US were written.

    2. I believe these cases may well reveal something important insofar as they highlight methodological differences among the conservatives (which is important insofar as the conservative justices take their methodological commitments seriously, which most of them seem to do). This, in turn, helps us understand why conservatives may vote for “liberal” outcomes in some contexts (see, e.g., Scalia’s vote for criminal defendants in confrontation clause cases).

      All that said, conservatives and liberals often split in antitrust cases because they have different views of how the market process operates (which implicates the consumer welfare standard within antitrust) and different views about aggressive plaintiffs’ lawyering (which we often see in antitrust as well). They have different views about the ACA because they have different views about the necessary clarity of criminal law.

  2. It’s far more interesting than how 4 of the justices vote, since those can be predicted with 98 percent accuracy.

    1. Is this the usual ‘the other side votes in lockstep’ canard that’s more feelings than statistics?

      The fun part is that this could be a quote from either the right or the left.

      1. To be fair Last American Hero (until the next Last American Hero) didn’t say the four justices made bad decisions–just that they (apparently) are predictable.

        Maybe he’s happy with their decisions?

        1. Saying those for libs/cons make bad decisions is totally fine, though; that’s to be expected in fact. Certainly I think the five conservatives make bad decisions quite regularly.

          It’s saying ‘those libs/cons are all ideologues with no diversity of thought, unlike the nuanced reason and thoughtfulness on my side.’

          1. I think its safe to say the 4 liberals and 2 of the conservatives are about as close to ideologues as justices get. I’m interested in seeing how Gorsuch and Kavanaugh shake out in the future, whether their nuance is due to actual reason and thoughtfulness, or simply a different set of concrete ideologies

            1. It’s not safe to say to anyone who pays attention to the Court at all. Even in hot-button cases, the liberal block and take issue with one another’s findings.
              And Alito and Thomas sure have their differences as well.

  3. On a personal note, I admit that I just don’t like Kavanaugh, in the same way I dislike Roberts. More, as a protege of Kennedy, my only expectation is that he will act like a protege of Kennedy. But that aside, I also suspect that this guy is just not that smart. He completely flubbed this case by demonstrating a total ignorance of the nuances of the controlling precedent and antitrust law in general. Reminds me of his inability to understand the difference between a tax and a penalty. Trump should have jettisoned this guy when he had the chance.

  4. I am having a hard time understanding why a more simple structure could not have been followed had the decision to decide on initial meaning(or thereabouts) over precedent had already been concluded worthwhile.

    It seems to me that Article III.2 of the constitutions clearly places into federal court the jurisdiction for certain named “cases and controversies” between a short list of situations and parties.

    When those cases and controversies are named to be under the power of federal courts, does it really require a “penumbra” and “spirit of the document” reading to conclude that it is a ~move~ not an “also” ? Isn’t the language of artricle III.2 enough for an Occams Razor and a “what else could this language have meant because if they meant more they would have said more” logic to say “all disputes about admiralty or between states etc were made transfered to the ~exclusive~ authority of federal courts?

    This wasn’t about “sovereign immunity” at large, but specific exceptions to sovereign immunity where the federal goverment gained authority.

    Section 2
    1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

    —to all Cases affecting Ambassadors, other public Ministers and Consuls;
    —to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;
    —to Controversies between two or more States;
    —between a State and Citizens of another State;1
    —between Citizens of different States,
    —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

    OK, now, after the constitution seems to clearly move all disputes in those matters, out of the state courts and into federal courts, the 11th amendment comes along.

    The constitution in article III.2 has already Banned citizens from suing in state courts by instead forcing them to sue in Federal courts

    The 11th amendment Then bans those suits in Federal courts too, providing no direct redress for citizens vs the various states.

    The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

    How can we read the 11th amendment as transfering back to states that which was moved to the federal courts? That plain language does not move anything to state courts – it merely bans the federal courts.

    Between the two it disallows citizens to bring suits against other states.

    That is not necessarily a flaw or an omission at all but an affirmative rule to require citizens to petition their own state to take action against another state in federal courts on a peer to peer basis.

    Whether or not employees of one state acting within the boundaries of another state should be treated as individuals independent of their employer or not does seem worthy of some dispute – a judgment against the state of California employees doing the wrongs could be enforced perhaps – but only enforced if the state of Nevada took action against the state of California directly to seek redress in federal court … not a citizen to state action.

    Anyway. The plain language seems far more clear to me.
    1) some cases and controversies were made the domain of Federal courts only by III.2
    2) Amendment 11 in turn banned one type of those that were moved to even being heard at that federal level.

    Forget sovereign immunity – whether that was the reasoning behind the rules prior to the constitution the constitution itself clearly clarifies and amends that common law in the named situations above ?

    1. excuse me, I meant this for another thread. I reposted it there and it can be removed here.

  5. […] Jonathan has noted, the Supreme Court recently released an interesting antitrust opinion in Apple, Inc. v. […]

  6. […] Jonathan has noted, the Supreme Court recently released an interesting antitrust opinion in Apple, Inc. v. Pepper. […]

  7. […] Jonathan has noted, the Supreme Court recently released an interesting antitrust opinion in Apple, Inc. v. Pepper. […]

  8. […] Jonathan has noted, the Supreme Court recently released an interesting antitrust opinion in Apple, Inc. v. Pepper. […]

  9. […] Jonathan has noted, the Supreme Court recently released an interesting antitrust opinion in Apple, Inc. v. Pepper. […]

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  11. […] in that [Ilya Shapiro, Washington Examiner] More: Gorsuch, Kavanaugh differ often, we can see now [Jonathan Adler and […]

  12. […] week, I discussed how the Supreme Court’s two newest justices—Brett Kavanaugh and Neil […]

  13. […] week, I discussed how the Supreme Court’s two newest justices—Brett Kavanaugh and Neil […]

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