The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.