Supreme Court

Kavanaugh v. Gorsuch—Part Deux

Trumps two High Court nominees are jurisprudentially independent of one another.

|The Volokh Conspiracy |

Last week, I discussed how the Supreme Court's two newest justices—Brett Kavanaugh and Neil Gorsuch—agree less often than one might expect. This morning's SCOTUS opinions provide further evidence of their jurisprudential independence from each other. The Court decided three cases today, covering three different areas of law, and President Trump's two nominees disagreed in each.

In Herrera v. Wyoming, Justice Gorsuch joined Justice Sotomayor's five-justice majority opinion upholding Native American hunting rights under an 1868 treaty and rejecting the claim that these rights had been extinguished either by Wyoming's statehood or the creation of Bighorn National Forest. Justice Kavanaugh joined Justice Alito's dissent. The rest of the Court split along traditional left-right lines.

In Mission Product Holdings v. Tempnology LLC, Justice Gorsuch was the lone dissenter, as he would have dismissed the case due to mootness concerns. Justice Kavanaugh joined Justice Kagan's eight-justice opinion for the Court.

In Merck Sharp & Dohme Corp. v. Albrecht, Justices Gorsuch and Kavanaugh concurred with each other on the proper judgment, but embraced differing rationales. Justice Gorsuch joined Justice Breyer's opinion for the Court (along with Justice Thomas and the Court's other liberals). Justice Kavanaugh, on the other hand, joined Justice Alito's opinion concurring in the judgment (as did the Chief Justice).

These splits do not really show one of the Court's newest justices as being more "conservative" than the other, but they do suggest meaningful differences in method and underlying jurisprudence. While this week Justice Gorsuch seems to have joined the Court's liberals and Justice Kavanaugh tended to stick with the Court's conservatives, in last week's Apple antitrust case they split in the opposite direction.

I am reluctant to draw broad conclusions about the meaning of these differences, as it is still early. Justice Kavanaugh appears (thus far) to be a bit more of a pragmatist and seems to show greater judicial humility, which is not at all unusual for a junior justice. Justice Gorsuch, on the other hand, seems more comfortable embracing more stark, formalist approaches to various questions. It's also possible we are beginning to see differences that are a product of their respective experiences—a difference that could explain their disagreements on questions of Indian Law, something that arises far more often on Tenth Circuit (on which Justice Gorsuch sat) than in Washington, D.C.

While it may be premature to draw broad conclusions about the nature of their differences, these splits show that Trump's two nominees to the Court are anything but carbon copies or clones of one another.

 

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  1. Please don’t keep doing this. It promises to get very boring.

    Here is what would be interesting. Find a case where the subject in contention has potential to directly affect election outcomes, with Rs favoring one outcome, and Ds favoring the other. Show me a split between these two in a case like that, and I will be interested.

    Because I never expect to see such an outcome, I continue to suggest that Gorsuch and Kavananaugh are illegitimately appointed political justices.

    1. “illegitimately appointed ”

      LOL

      Merrick Garland (RIP) would be disappointed in you.

      1. RIP? What happened to Merrick Garland?

        He may be a Supreme Court justice, on the winning end of plenty of 6-5 decisions, in a few years.

        Legitimately nominated and confirmed . . . for a position on an enlarged Supreme Court.

        1. Maybe he’ll be the sixth vote to uphold President Warren’s family abolition bill.

          1. From the linked article: “…motherhood has been weaponized as an ideological construct.”

            I’m adding “weaponized” to my personal list of words never to use, even ironically, along with these: problematic, synergy, & right-size.

        2. Please do everything you can to ensure this happens. When the history books are written as to who destroyed the Supreme Court and by doing so the balance of powers and the Republic I want the name of Democrats and leftists permanently etched besides it forever for all future generations to see and understand what you guys are all about.

        3. There’s not a chance of Garland ending up on the Supreme court.

          Garland was a somewhat middle of the road pick due to Obama knowing his chances of getting anyone particularly left-wing past a Republican Senate that late in his last term were laughable. And the Democratic party is currently moving left so fast its leaving a vapor trail.

          By the time Garland has any chance of being nominated, he’ll be too conservative for Democrats to nominate for dog catcher, let alone the Supreme court.

          1. Let the dems pack the court. They still have not learned the “ending the filibuster” lesson, time to teach them again that the GOP gets to do things too.

          2. No dude, its the Republicans who are more rightwing than ever according to the official narrative. Don’t you miss the transgender bathroom promoting microaggression concerned Republicans of 40 years ago?

            1. The narrative is true. Republicans have moved further right. It is also true that Democrats have moved further left.

        4. He’ll be considered too old to be appointed

          1. And that, IMHO, is his Hail Mary chance of getting appointed.

            In the – we hope – very unlikely eventuality of one of the liberal Justices being assassinated, in what was plainly a political assassination, a GOP President would (rightly) come under immense political pressure to prevent the political balance on the court from being altered by a political assassination.

            Consequently a liberal judge might be nominated, in which case the GOP President would be looking for (a) someone old who is (b) not a Warp 12 moonbat. Garland would fit this bill pretty well, and would bring with him a tiny tube of salve to soothe the liberal whining about his “ill treatment” at the hands of the GOP Senate.

            So what’s that – a 0.5% chance ? Better than de Blasio’s chances of winning the D nomination.

    2. “I continue to suggest that Gorsuch and Kavananaugh are illegitimately appointed political justices.”

      OK. Can I continue to suggest that Obama was an illegitimately elected President?

      1. I think illegitimate is tilting at windmills, but the GOP has certainly not covered itself in glory in either of those nominations.

        You a birther, DjDD?

        1. He wouldn’t need to be. Russia / USSR trying to influence US elections is nothing new.

        2. I’m not a “birther” (the silly leftist insult of choice for anyone who didn’t support Obama’s failed polices), but I sure would like some disclosure of his college and post graduate records. Not for “birther” purposes, but I suspect some sort of Elizabeth Warren-esque exploitation, since it apparently was all the rage in some circles to exploit some claim of protected status (usually false) for personal gain.

          1. “Birther” is a specific, proper, damning descriptor. Some people wish to see it shelved, much as it is difficult to find anyone today who will admit to having been a vicious bigot or violent racist in the past, even in the ’50s or ’60s, even in Alabama or Mississippi.

            When discussing the disclosure of records, do you refer to Pres. Obama, Pres. Trump, or both? To transcripts? To tax returns? To admissions records?

            Have you read the letter Michael Cohen sent to certain schools?

            1. Sorry Rev., too many crazy tangents for me to follow sober. I’ll check back later. Maybe this will make sense after some alcohol.

        3. “but the GOP has certainly not covered itself in glory in either of those nominations.”

          Sarcastro’s approval being the gold standard for SCOTUS nominations.

          1. Read more carefully TiP.

        4. “covered itself in glory in either of those nominations”

          The Garland (RIP) gambit was one of the great political coups of US history. Glorious.

        5. You might be right about that, Sarcastr0. Not the tilting at windmills part, but maybe it wasn’t the best way to convey what was on my mind: that the presence of each of them, because of circumstances during their appointments, detracts from the legitimacy of the Court. The none-for-you-Obama tactic with Garland, and the vow to seek partisan retribution from Kavanaugh, will both reverberate through future debates about whether enlarging the Court is now justified.

          The near certainty that both can be expected to decide in favor of Rs on every overtly political question (meaning the questions which actually govern politics, and affect election outcomes) makes these two illegitimate in the same way a similar tendency among liberal appointees would (and does, in my opinion). The Court’s legitimacy very much depends on satisfying critics that the Court decides cases one at a time, case by case, based on the pleadings—not based on consistently-applied ideological principles.

          1. Alas, I cannot disagree with you there. While I don’t think we can kick individual Justices off of the Court or ignore their decisions, the speed at which the GOP’s by-hook-or-by-crook methods turned the left away from support of the Court as a whole was astonishing and risky for the Republic.

            1. Yes, only the left’s lack of support for the court is “risky” for the republic.

              Much of the right has hated the court since Earl warren. I guess that does not matter.

              Face it, it wasn’t GOP tactics but the fear that maybe the 80 year domination of the courts by the left was at risk and they would have to [gasp] win elections now that has turned away the left. Much like the 60 Dem senate in 2009 was ok, but the GOP controlled [narrowly] 2019 senate is bad.

              1. Face it: what I and most liberals believe isn’t actually what the believe. Instead it’s this strawman Bob has thoughtfully provided.

                1. Believe? Or say?

                  Shrug, its not like I care about the court’s “legitimacy”. Let it burn.

                2. “Instead it’s this strawman Bob has thoughtfully provided.”

                  Expressed differently – “my strawman is more valid than Bob’s strawman”.

                  By definition, both cannot be illegitimate.

            2. Oh, come on: The left has long taken the position that the only thing that legitimizes any institution is themselves being in control of it. There’s nothing the Republicans could have done to keep the Court “legitimate” in the eyes of the left except letting the left remain in control.

              “By hook or by crook” meaning, a Senate majority didn’t confirm your guy, and then an elected President nominated somebody they confirmed. Oh, that’s really the stuff of illegitimacy!

              1. As the left has said repeatedly, it’s not the ideology, it’s the tactics, Brett. Do they complain about Alito? Roberts? No.

                But you will hear what you want to hear.

                1. ” Do they complain about Alito”

                  Of course they do. Loudly. They still complain about Thomas.

                  Roberts is one of them at heart.

                  1. No one says Alito is illegitimate, only a tool.

                    1. The question about birth certificate validity did not arise for every Democratic President in history. Therefore Obama faked his!

                  2. Roberts is one of them at heart.

                    Quite a telling statement.

    3. Why would they be illegitimate? Trump, like him or not, is legitimate. The first of those justices is also legitimate as the SC cannot order the Senate to vote on a prospective justice — that’s a political thing, i.e. it is for The People to decide at the next election if their electees are performing their jobs well.

      1. No. You can’t sensibly tie Supreme Court legitimacy, or legitimacy in the appointment process, to elections. The only time an election could make a difference in such cases is before any voter knows the Senate majority leader intends to steal a Supreme Court swing vote, or that the Republican caucus will be fine endorsing a nominee who has vowed partisan retribution.

        Supreme Court legitimacy is in the hands of the Court, and a matter for the consciences of the President and individual Senators. After they decide to blow it off, the only reply left is retaliation after the fact—which will erode legitimacy still more.

        1. The voters knew about Garland (RIP) and ratified the decision.

          1. This is kind of a strange thing to say. First, I’m not sure it’s fair to reduce any election to one issue like this, especially when it was a nuanced deal. Second, I’d need to know which election result was the ratification of the decision. If you think it was the Clinton/Trump election, that seems wrong since the Garland decision was one made by Senate Republicans. Even so, Clinton won the popular vote, so it’s not true that the “voters” ratified the decision (unless you mean solely the Electoral College voters). If you wanted to see how voters responded to the specific issue, you’d have to look to the Senate election, in which the Republicans got trounced in the popular vote and lost seats.

            1. Good comment, NToJ. One problem is that, as a process, linking Senate election results to specific issues gets distorted by a built-in spoiler. You never see a result that reflects even half of would-be voters for senator, because only a third of the seats get contested promptly enough. That makes Bob’s remark more of a taunt than a forthright argument.

            2. you’d have to look to the Senate election, in which the Republicans got trounced in the popular vote

              Having two Ds and no Rs on the ballot in California will kinda do that for you. Look for a healthy D win in the Presidential popular vote in 2020 – even if Trump is comfortably re-elected – if California keeps him off the ballot.

              Doh !

              1. “Having two Ds and no Rs on the ballot in California will kinda do that for you.”

                Republicans would have lost the Senate popular vote even if a Republican had been on the California ballot.

        2. So the court should order the Senate to vote? Or if we are just talking odd but legal stretches of behavior that make for unsettling but legal results?

          If the latter, as you describe, then it depends on whose viewpoint. A lot of the Republican voter rage was that the Congress Repubs were going along with the Democrats too much. The alternative result, which is simply your desire, would make the court iegitimate to them. And arguably they’d be even angrier given this pressure to stop giving in to Democats has been building for the last handful of presidential elections.

          1. Krayt, the constitutional requirement is the advice and consent of the Senate—not the advice and consent of the majority leader. Letting one guy block the Senate from performing according to it’s constitutional norms is a bad thing, but not illegal.

            The remedy is to be found in politics, either at the polls, or by political retaliation, after sufficient political power has been assembled to accomplish it. Because McConnell’s antics not only cost the Democrats a Supreme Court seat, but also a Supreme Court majority, Republicans should expect a Democratic retaliation which will likewise cost Republicans the majority.

            When that happens, please try to preserve the equanimity you display now, in your satisfaction at getting the outcome you prefer—because retaliation is part of that outcome.

            Alternatively, you could condemn McConnell’s antics, concede that the Court’s legitimacy has been damaged, and join others in seeking Supreme Court reform on terms which would end tit-for-tat political warfare over the Court. That would be wiser, and probably less painful. I urge you to do that.

            1. McConnell could not have preveted a vote on Garland without the consent of his caucus – which formed the majority in the Senate. Consequently he consulted them in advance, and went ahead with their agreement.

              Moreover, even if he had allowed a vote there’s no way Garland would have been confirmed. Even if three or four moderate Rs had voted for him, he’d never have got past a filibuster.

              McConnell’s scheme was not intended to and did not, block Garland. It was to minimise the harm to R Senators by choosing the least politically damaging method of the blocking which was going to happen anyway.

              In fact it turned out not to be damaging at all, since it helped get the evangelicals into the booths in November.

  2. Kavanaugh showing “judicial humility”? Was this on display in his gross, incompetent misinterpretation of controlling precedent in Apple? Where did he get his “humility”? From his mentor Kennedy? Was this on display in Casey? In the redefinition of marriage? Please define “judicial humility” as it pertains to the pompous sludge emanating from the Court.

    1. MKE thinks he has the stature to label a Supreme Court justice as “incompetent” even though MKE isn’t smart enough to realize that there is no “controlling” precedent for the Supreme Court.

      1. How could I ever have the temerity to question my superiors on the Court? My humble apologies. And I never said they were absolutely bound by precedent. It should “control” in the sense of determining the outcome if it isn’t overruled you mind numbed imbecile.

        1. You aren’t questioning their correctness, but rather their competence. That is indeed a question of credentials.

          This reminds me of when I was a physicist and autodidacts would write to me about their new theory of gravity, and if I didn’t agree it was proof of either my perfidy or my idiocy.

          1. I think proof of your idiocy is pretty apparent. And you’re a physicist like Bill Nye the Science Guy is a scientist.

            1. To be fair, I wasn’t the best physicist. Hence my running away to the law.
              But Nye was a pretty bang-up engineer, from what I’ve heard.

              Your posting nothing but insults says more about you than it does about me.

              1. Nothing but insults? Yeah, that’s fair. But, at the very least, the exchange illustrates your obnoxious hypocrisy in action.

                1. Like the man said, MKE, nothing but insults.

          2. “This reminds me of when I was a physicist and autodidacts would write to me about their new theory of gravity, and if I didn’t agree it was proof of either my perfidy or my idiocy…”

            That was you?

            1. Hah!

              Were you the one about the dimensional magnets or the ones about Einstein being a cultist fraud?

              They spam everyone in the physics contacts list, but I was honored just to be included.

              1. I’m just spitballing here, but would the Khan Academy figure prominently in your physics education?

                1. You don’t think people who disagree with you can be scientists, or are you just throwing out insults for the hell of it?

                  1. We’ll take that as a “yes”.

                  2. Uh, the first one, as applied to you.

    2. “his gross, incompetent misinterpretation of controlling precedent in Apple?”

      How do you manage to fit that many errors of logic into such a short phrase? It must be a gift. Now I have never, and I mean NEVER, been accused of siding with the so-called “liberal” wing of the Court on any truly political decision. I have always been a fan of Scalia, and Thomas is my favorite principled originalist on the Court. I’ve been practicing law for 37 years now, and admitted to practice before the Supreme Court for more than 15 years. I religiously follow ScotusBlog, I read the opinions, and in bigger cases I read the Cert petitions and replies, the merits briefs, and even many of the amicus briefs. Frankly, while I saw the arguments on both sides in Apple, and I understood that Illinois Brick was unclear exactly how it ought to be applied to the very different factual scenario in Apple, I personally thought that Kavanaugh had the better argument. But I would never accuse Gorsuch of acting in bad faith by dissenting. I can’t help but think that MKE’s knee-jerk lashing out at Kavanaugh is completely uninformed and a perfect demonstration of Dunning-Kruger Effect.

      1. How could you ever manage to fit such monumental BS in one paragraph? Religiously follow ScotusBlog, read all opinions, cert petitions, amicus briefs,and still have time to practice law for a living? And you how could you leave out the Court transcripts? By the way, I didn’t accuse him of acting in bad faith. Just don’t think the guy is too sharp. Someone with whom apparently you can relate.

        1. Maybe he just reads fast, it isn’t uncommon among lawyers. And if he’s admitted to practice before the Supreme court, all of that could just be job related.

  3. In Herrera, it’s interesting/head-scratching/fun/odd that we’re still arguing Indian issues.

    Also this: “The judgment of the Wyoming District Court of the
    Fourth Judicial District, Sheridan County, is vacated, and
    the case is remanded for further proceedings not incon-
    sistent with this opinion. ”

    Not inconsitent?

    Why the double negative?

    1. Its boilerplate, its what the S/C always says on remand.

      1. Welp, in Merck Sharp they said: “. . . we vacate its judgment and remand the case to that court for further proceedings consistent with this opinion.”

        1. Apparently “not inconsistent” is when they remand to a state court, “consistent” when its to a lower federal one.

          1. This. The Supreme Court can directly supervise/command lower federal courts, hence they remand “for proceedings consistent with this opinion.” But they do not have direct authority over state courts; their only authority is over questions of federal law ruled upon in state courts. So remand is “for proceedings not inconsistent with this opinion,” which reflects the limited scope of authority.

            It isn’t so much a double negative as it is a recognition that the state court could have plenty of other avenues to decide the case that have nothing to do with the federal issue at hand.

            1. Thank you for the illuminating subtlety. I’m impressed.

    2. and
      the case is remanded for further proceedings not incon-
      sistent with this opinion. ”

      Not inconsitent?

      Why the double negative?

      As the alien said at the end of Contact, “This is the way it’s been done for billions of years.”

  4. I expect Krayt to be singing (or caterwauling) along a different line with respect to “legitimacy” and “political things” when the context is enlargement of the Supreme Court.

    The rules appear to be simple: One-vote House majority and one-vote Senate majority and presidential signature = lawful, proper Supreme Court enlargement.

    (Bill Barr would nonetheless be expected to submit a memo flattering Republican aspirations, of course.)

    1. You say this over and over, but the they Senate filibuster is not going away to enlarge the Court.

      1. That is quite the unqualified assertion, and one seemingly in conflict with readily observable evidence. The Senate filibuster has been disregarded in the context of populating courts in general and the Supreme Court in particular recently.

        1. I see where you’re coming from, however, despite Trump’s insistence that the filibuster has to go, neither party is inclined to do so for regular legislation, which is what it would take for your court packing scheme to succeed. The only way that would happen, is if the filibuster went the way of the dodo for some other big agenda item that one side wanted. Court packing isn’t a big enough desire from the left, at least yet.

      2. mad_kalak, with the political power Kirkland posits, the Democrats can get rid of the filibuster with a simple majority, by changing the rules. If they can afterwards compel the Republicans to join in a reform that takes partisan appointments out of the process, by imposing an even bigger super majority requirement than the current filibuster requirement, they need not fear Republication retaliation for doing it. It will be beyond the Republicans’ power to do anything but accede to reform demands, while giving up their court majority in the process.

        And the voters will be grateful to the Democrats, for using political power to pursue genuine reform, instead of lunging for partisan advantage. The nation will understand the Democrats as a party of generous spirit, and far-sighted statesmanship, for thus sacrificing advantage for themselves on behalf of the public good.

        If Republicans instead choose intransigence on reform, their alternative will be to stand and take it, as Democrats pack the court with young partisan appointees, while blaming Republicans for thwarting reform. Given enough Democratic Party political power, that is all within the reach of tactics less radical, and more legitimate, than those which Mitch McConnell used to create this mess in the first place.

    2. I’m surprised Arthur has time to comment here, what with advising both President Hillary, and the U of Virginia in their case with the Phi Psis.

  5. Given that the Progressives march in lockstep (no matter the law policy is all that matters) that these two Justices differ in their approach to the law does not bode well for the future of the country.

    1. You keep saying this. Do you have any evidence that’s true other than that you believe it strongly in your heart?

      1. Do the math if you do not wish to remain clueless along with Kirkland et al.

        1. What is the math for ‘lockstep?’ Or are you turning marginal differences in agreement rates into something much bigger than it is?

          1. This post should not be necessary and is probably a waste of time, but take a look at the relentless, progressive, judicial pattern of support for homosexual marriage, abortion, and gun control. You will see that the progressive justices are totally committed to policies rather than law.

            By the way, there is no shame in being dedicated to policies, the shame is in covering the dedication up with the force of law.

            1. In case anybody else is wondering, here’s the actual math. For the 2017 term, Scalia and Sotomayor agree 49% of the time. Every other Justice agrees with each other Justice a majority of the time. The most “lockstep” justices is a tie, between Thomas/Alito (93%) and Kagan/Breyer (93%).

  6. To state the obvious, the vast majority of issues decided by the Court don’t really have a “conservative” or “liberal” side. 9-0 decisions are much more common than 5-4 decisions. (I daresay, though I don’t have data in front of me, that 9-0 is the most frequent voting outcome in cases, at least for the last 30 years or so.) Per a 2014 NYT piece, the justices who voted together most often were Ginsburg and Sotomayor, at 90%. The justices who voted together the least? Ginsburg and Scalia, who voted together 66% of the time.

    1. For a long time the 1st issue each year of the Harvard Law Review had a thorough analysis of SCOTUS voting.

    2. CORRECTION: It was THOMAS and Ginsburg who agreed the least, voting together 66% of the time. (Ginsburg and Scalia were at 70%).

  7. […] Will the liberal wing’s success at piecing together 5-4 majorities survive Justice Kennedy’s departure? [Kimberly Strawbridge Robinson, Bloomberg] Fundamental restructuring of Supreme Court becomes a popular campaign issue with Democrats, and the dangers in that [Ilya Shapiro, Washington Examiner] More: Gorsuch, Kavanaugh differ often, we can see clearly now [Jonathan Adler and update] […]

  8. […] an article published Monday in Reason, Adler wrote that it “is possible we are beginning to see differences that are a product […]

  9. […] an article published Monday in Reason, Adler wrote that it “is possible we are beginning to see differences that are a product […]

  10. […] and … Neil Gorsuch, disagreed on” all three of yesterday’s decisions. At Reason’s Volokh Conspiracy blog, Jonathan Adler notes that “[t]hese splits do not really show one of the Court’s […]

  11. […] sat) than in Washington, D.C. [where Kavanaugh sat],” Adler wrote in an article published in Reason on […]

  12. […] In Merck Sharp & Dohme Corp. v. Albrecht, Justices Gorsuch and Kavanaugh concurred with each and every person other on the proper judgment, but embraced differing rationales. Justice Gorsuch joined Justice Breyer’s feeling for the Court (along with Justice Thomas and the Court’s other liberals). Justice Kavanaugh, on the other hand, joined Justice Alito’s opinion concurring in the judgment (as did the Most important Justice). (Explanation) […]

  13. […] This term began with significant expectations among conservatives and liberals alike that the Supreme Court would push far to the right. Although such expectations were well-founded, they have not exactly panned out, at least so far. Of the eight 5-4 votes the justices have had in argued cases so far this term, the four liberals have only been in dissent in four, or 50 percent, of them. This might not showcase the power of a conservative bloc vote in the same manner as some expected. Gorsuch, Kavanaugh and Chief Justice John Roberts have also all aligned with the liberal justices in close decisions. This lack of conservative cohesion, especially between Trump’s nominees, has struck some observers as somewhat surprising (although others, like Professor Jonathan Adler, seem less shocked by it). […]

  14. […] This term began with significant expectations among conservatives and liberals alike that the Supreme Court would push far to the right. Although such expectations were well-founded, they have not exactly panned out, at least so far. Of the eight 5-4 votes the justices have had in argued cases so far this term, the four liberals have only been in dissent in four, or 50 percent, of them. This might not showcase the power of a conservative bloc vote in the same manner as some expected. Gorsuch, Kavanaugh and Chief Justice John Roberts have also all aligned with the liberal justices in close decisions. This lack of conservative cohesion, especially between Trump’s nominees, has struck some observers as somewhat surprising (although others, like Professor Jonathan Adler, seem less shocked by it). […]

  15. […] This term began with significant expectations among conservatives and liberals alike that the Supreme Court would push far to the right. Although such expectations were well-founded, they have not exactly panned out, at least so far. Of the eight 5-4 votes the justices have had in argued cases so far this term, the four liberals have only been in dissent in four, or 50 percent, of them. This might not showcase the power of a conservative bloc vote in the same manner as some expected. Gorsuch, Kavanaugh and Chief Justice John Roberts have also all aligned with the liberal justices in close decisions. This lack of conservative cohesion, especially between Trump’s nominees, has struck some observers as somewhat surprising (although others, like Professor Jonathan Adler, seem less shocked by it). […]

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