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Gorsuch's Record Was More 'Liberal' Than Kennedy's This Term

Of course, Gorsuch had his share of clashes with the liberal bloc too.

Here's a curious fact about the U.S. Supreme Court term that concluded in June: Trump-appointed Justice Neil Gorsuch racked up a more "liberal" voting record than Justice Anthony Kennedy.

Kennedy did not join the Court's liberal bloc in a single 5–4 decision in the entire 2017–2018 sitting. That's unusual. In previous terms, Kennedy's fifth vote decided such contentious issues as gay marriage and abortion.

Gorsuch, on the other hand, did side with the liberal bloc in Sessions v. Dimaya, which struck down a provision of the Immigration and Nationality Act dealing with the power of the federal government to deport any alien, including a lawful permanent resident, convicted of an "aggravated felony." Justice Elena Kagan wrote for the majority, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Gorsuch, who concurred in part and joined in the judgment, provided the tie-breaking fifth vote.

Thanks to Dimaya, it is now more difficult for the federal government to deport certain aliens under federal immigration law.

Gorsuch's views also look more liberal than Kennedy's when you consider their respective approaches in Carpenter v. United States, the blockbuster case in which the Court held that a warrantless government search of cellphone location data violated the Fourth Amendment.

Technically, Kennedy and Gorsuch both dissented from the Court's 5–4 judgment. But the content of their opinions was entirely different.

Kennedy thought the Court should have let the warrantless search stand. "Individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party," Kennedy wrote, joined by Justices Clarence Thomas and Samuel Alito. Cellphone records "are no different from the many other kinds of business records the Government has a lawful right to obtain by compulsory process."

Gorsuch, by contrast, dissented because he favors "a more traditional Fourth Amendment approach" that asks "if a house, paper or effect was yours under law." Cellphone records, he observed, "could qualify as [your] papers" for Fourth Amendment purposes.

But because that argument was not raised by the litigants, Gorsuch felt he had no choice but to advance his position via dissent. He then used his opinion to invite future litigants to make arguments grounded in the amendment's "original understanding," a development that could prove very unfriendly to the wishes of law enforcement.

Of course, Gorsuch had his share of clashes with the liberal bloc too.

Consider Epic Systems Corporation v. Lewis. Here's how Gorsuch summarized the case: "Should employees and employers be allowed to agree that any disputes between them will resolve through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?" Gorsuch's 5–4 opinion held that employees and employers have the legal right to make contracts that include one-on-one arbitration. He was joined by Chief Justice John Roberts and Justices Kennedy, Thomas, and Alito.

Writing in dissent, Justice Ruth Bader Ginsburg argued that the best reading of applicable federal law was that "employees must have the capacity to act collectively in order to match their employers' clout in setting terms and conditions of employment."

Upping the rhetorical ante, Ginsburg then accused Gorsuch of seeking to resurrect the Supreme Court's "Lochner-era contractual 'liberty' decisions." She was referring to Lochner v. New York, a 1905 ruling that invalidated a state economic regulation on the grounds that it served no legitimate public health or safety purpose. For a jurist like Ginsburg, Lochner is a dirty word; she even favorably cited the late conservative legal thinker Robert Bork, who attacked Lochner as "the symbol, indeed the quintessence of judicial usurpation of power."

Gorsuch responded directly to this critique, writing that "instead of overriding Congress's policy judgments, today's decision seeks to honor them. This much the dissent surely knows. Shortly after invoking the specter of Lochner, it turns around and criticizes the Court for trying too hard to abide the Arbitration Act's 'liberal federal policy favoring arbitration agreements.'"

As for Ginsburg playing the Bork card against him, Gorsuch responded in kind, citing the liberal legal thinker Laurence Tribe, who wrote that "'Lochnerizing' has become so much an epithet that the very use of the label may obscure attempts at understanding." In judicial circles, that's what you call a sick burn.

Photo Credit: Office of Senator Luther Strange/Wikimedia

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  • Fist of Etiquette||

    I hate to say it, but Gorsuch might be the libertarian's best reason to prefer Trump over Clinton in the binary choice of who right now occupies the White House.

  • Brian||

    The three big things people should care about are:

    1. Commander in chief of US armed forces
    2. Veto power
    3. Nominating judges

    Everything else is mainly a distraction.

    When you boil it down to those three... it's a tough call, he's probably as good or better than the Democrat choices.

    Way to go, Democrats!

  • Eddy||

    Let's include

    4. Pardons

  • Rock Lobster||

    Gorsuch's record was more "liberal" than Kennedy's this term?

    I believe the word you are looking for is "libertarian."

    It is decisions like Gorsuch's appointment that are dragging me kicking and screaming toward voting for Trump in 2020. Of course, a lot can happen in two years, but the "democratic socialism" being pushed by the usual suspects would certainly make the decision easier.

  • MasterThief||

    That would be the correct term in this regard. I know the left has redefined and stolen the label of liberal, but asserting that the leftists judges' side is that of liberalism means we are mixing terms here.

  • Rock Lobster||

    The editorial choice of words at Reason speaks volumes.

  • TLBD||

    I know the left has redefined and stolen the label of liberal

    This was one of the greatest tricks played on our citizens, the damage it did to liberty is incalculable. One of the many reasons I can never support the Democratic Party. Lying scumbags.

  • Rock Lobster||

    The tactic of the left to twist, redefine, and corrupt the very language we use to freely discuss ideas in order to advance their agenda should be taken as prima facie evidence of their ill intent. Their ideas do not stand up to scrutiny, and they know it.

    Unfortunately, the ignorant and illiberal attitudes of many who call themselves conservatives, and in particular Republicans, makes opposing the left a much more difficult proposition that it should be. However, the one time I actually voted for a Democrat--the 1990 Texas gubernatorial election for Ann Richards against Clayton Williams--I sincerely regretted it despite the fact that Williams was such a flaming asshole. But I was young then. I can't imagine repeating that mistake.

  • Fuck you, Shikha (Nunya)||

    Just lay back and enjoy it next time?

  • Uncle Adolf's Gas and Grill||

    The left didn't steal the label liberalism, they're the legitimate heirs to it. Show me the moment when classical liberalism was nefariously coopted by modern progressivism. There isn't one, because progressivism is the natural product of the evolution of liberalism. The difference between classical liberalism and modern progressivism is like the difference between Stage I and Stage IV cancer.

  • loveconstitution1789||

    Modern Liberals dont like civil rights unlike their Classic Liberal theft victims.

  • markm23||

    That moment was when FDR needed to distinguish himself from Herbert Hoover, without explicitly saying that he wanted to adopt Hoover's failed policies _and do them harder_. So he adopted "liberal" for what had been known as "Progressive" from the 19th Century right up to 1932 - including Teddy Roosevelt, Woodrow Wilson, and Hoover.

  • flyfishnevada||

    The article doesn't seem to match the headline. Not only was it prefaced with "Kennedy did not join the Court's liberal bloc in a single 5–4 decision in the entire 2017–2018 sitting. That's unusual." but I don't see Gorsuch's decisions as traditionally liberal...especially the 4th amendment case. In fact, his opinion seems downright conservative, in the traditional sense of the term and not the modern "law and order crusader" sense.

  • HANSENWT||

    And yeah, once you have a couple more RBG's added or now some are pushing a much larger court (but only if the libs are in control of the appointments when the stretch occurs) then you could actually see the constitution be changed by a liberal congress and a liberal Supreme Court upholds the changes. And I know this sounds like fearmongering....but most folks don't know or see the strange rulings on some of the bias circuit courts. Jurists are lawyers, lawyers are being pumped out of Bigcollege U....with the notion that defining law is based on decency, morals, modern consenses.....not defining law. They are being taught by and large to make law not interpret it. Lousy politicians are not effective in changing laws or they know they will never get a consensus to change a given law so they just change it in their head to work with what they think it should be and convince you the voter they are right. (see crap load of Obama executive orders).....Title IX is a big example...it is pretty clear what it says.....but you can get in massive arguments all day long on what it is supposed to do or not do. You know an argument is going south when someone tries to redefine "fair".

  • Shirley Knott||

    I'd agree. It's the SC appointments that really matter.
    Rolling back the regulatory state is good, even great, but that which can be undone with a pen can be redone with a pen.

    But Trump is doing a pretty good job of tarnishing the polish that has been so lavishly applied to the presidency and to politics in general. That could be another long term plus, but it's a little too likely that decades of principals over principles will restrict the scope of the tarnish. Regrettably.

  • Yellow Tony||

    But Trump is doing a pretty good job of tarnishing the polish that has been so lavishly applied to the presidency and to politics in general. That could be another long term plus, but it's a little too likely that decades of principals over principles will restrict the scope of the tarnish. Regrettably.
    Not even a president fucking a baby while brandishing a blender would make people reconsider their disgusting and deleterious adulation of the Oval Office's occupant.

  • Left ± Right > Hihn||

    Speaking from experience?

  • Anti-Fasciitis||

    That's a jaundiced perspective.

  • Rock Lobster||

    How about a president fucking a blender while brandishing a baby? Might that do it?

  • markm23||

    Self-amputation of an organ, in such a messy way as to make it impossible to prevent bleeding to death, would put the Vice President in the Oval Office.

  • Vaelyn||

    Our first transgender president!

  • Anti-Fasciitis||

    A vote for one branch should not be based on your desired outcome for a different branch. That's exactly the scenario that led to direct election of US Senators -- state legislators were sick of having their elections be all about who they would vote for for the Senate, rather than state-level issues. A common myth is that the direct election of senators was a federal power grab against the states, but that makes no sense since 3/4 of the state legislatures voted to ratify the amendment and give away their own power.

    That's why we need to have direct election of SCOTUS via the electoral college. And maybe for lower federal courts as well. It is already a political branch for all intents and purposes, just one with an opaque, disorderly, and manipulable process for selection (a la the Dems packing the lower courts in 2014 and the GOP stalling on SCOTUS confirmation hearings in 2016).

    And by all means, get rid of the life term. A free people cannot have rulers for life. If you want protections against "politician judges" then make them ineligible for reelection after their fixed term is up. Perhaps divide the country into 3 zones with equal electoral vote totals and have each elect a justice during the midterm elections, so there would be a 12 year term.

  • Chipper Morning Baculum||

    If you are gonna go all pie-in-the-sky with your proposals, let's go all the way and get rid of the Supreme Court altogether. Nine people should not be making decisions for 300 million. There is simply no way that a person can be an expert in all the different area of law that the Supremes have to handle. They often get basic things wrong, indicating their lack of understanding. For goodness' sake, some of the Supremes don't even know how to use email.

  • Anti-Fasciitis||

    OK, but what happens when Congress and the president do unconstitutional things?

  • Hamster of Doom||

    We stop giving them power they are unfit to wield? I dunno, maybe a bridge too far.

  • sarcasmic||

    That's the libertarian conundrum, isn't it? People who wield power generally seek that power. It isn't usually thrust upon them. Libertarians tend to suspect the motivations of power seekers, being that they are human and all. So libertarians seeking power is kind of an oxymoron.

    How will we every take over the world so we can leave everyone alone if we don't seek out the power to force it upon everyone!!! Jeez. Now I understand how Tony sees the world.

  • Anti-Fasciitis||

    Plenty of libertarians would seek power to make things better for liberty. I certainly would seek power if there were an avenue available to me.

    The problem is that it's extremely unusual for a person to obtain high level office without "paying their dues" rising through the ranks in the lower levels. Trump, Rand Paul, etc are exceptions that prove the rule. And "paying your dues" means carrying water and doing dirty work for the scumbags above you, for years or decades on end, while wielding very little independent power to do good. If you fight for liberty as a county board member, you're going to be actively blocked from rising any higher.

    Basically, the political system selects for the most dishonest, ruthless, and power-hungry. Even if good people wanted to pursue leadership they couldn't make it through.

  • sarcasmic||

    I certainly would seek power if there were an avenue available to me.
    .
    .
    it's extremely unusual for a person to obtain high level office without "paying their dues"

    The avenue is available to you. It's called "paying your dues."

    The people who want it more badly than you do are precisely the people who should be least trusted with it.

  • Anti-Fasciitis||

    Yeah, but my point is that it's not *power* that libertarians don't want, it's the stuff they would have to do in order to have a chance of getting it.

    If someone offered you a 1% chance to have a sex romp with Scarlett Johannson if you tongue clean every surface in every bathroom in Grand Central Station, and you refuse, that doesn't imply that you don't want a sex romp with her.

  • sarcasmic||

    Yeah, but my point is that it's not *power* that libertarians don't want, it's the stuff they would have to do in order to have a chance of getting it.

    It's easy to say you want something. Not so easy to prove it with your actions. Fifteen years ago I declared that I wanted to be debt free, and have enough money in the bank to cover emergencies without having to use a credit card. It took then of those years, and not much money spent on fun stuff, to achieve that goal.

    Dues are what determine whether you really want it or not.

    It's always available if you are willing to do what it takes.

    Whatever "it" is.

  • Shirley Knott||

    Demonstrated preference.
    It's the only honest guide we get.
    Expressed: "I'd have done anything to play Carnegie Hall."
    Demonstrated: "Manifestly not."

  • TLBD||

    That's the libertarian conundrum, isn't it? People who wield power generally seek that power.

    So the only answer is a lottery where our representatives are randomly selected from the population. I can get behind that. Would probably be a huge improvement. Sure, we'd get some asshats, but probably far less than we get currently.

  • sarcasmic||

    So the only answer is a lottery

    Like jury duty, only harder to get out of.

  • Anti-Fasciitis||

    Many years back there was a poll about whether people thought it would be better to select members of Congress from the phone book rather than voting for them. A huge majority supported the idea.

    Of course there would be practical problems. First, there's the possibility of rigging the lottery. Since they can't be reelected, there would be no accountability to constituents, and no reason for the randoms to not pull a Carol Mosely Braun and just use the office as a moneymaking machine and get while the gettin's good.

  • sarcasmic||

    Trade offs.

  • TLBD||

    Of course there would be practical problems. First, there's the possibility of rigging the lottery. Since they can't be reelected, there would be no accountability to constituents, and no reason for the randoms to not pull a Carol Mosely Braun and just use the office as a moneymaking machine and get while the gettin's good.

    And this is different than the current situation, how?

  • markm23||

    The original plan, at least as Jefferson saw it, was that the people would get PO'd again and shoot the tyrants.

    The unexpected effect was that, in the Supreme Court, they had created a branch of government whose highest power was to stop the other branches from breaking the Constitution - but not to pass laws or run anything themselves (without grossly distorting their role). So a power-seeking Justice, if at all honest, is one that looks for the government overreaching it's bounds and makes them respect the limits, because other than this, he has very little power.

    There have been two problems with this. One is that the power of constitutional review was not explicitly given to the judicial branch, so they were initially quite hesitant to claim it, and thus we have a bunch of bad precedent, such as the "rational" standard of review that fails to require any rationality. The other is that the justices are appointed and confirmed by the very politicians that they should rein in...

  • loveconstitution1789||

    One could say the greatest power to restrict government is the power to say no to all unconstitutional legislation.

    If the courts did their jobs and struck down unconstitutional legislation like the controlled substances act, they would be powerful in checking all budgets, legislation, and Executive orders.

    Instead, the courts defer to the legislative and exeutive branches too much.

  • Rock Lobster||

    Yes, but which evil podiatrist is your arch nemesis? That's the important question.

  • Anti-Fasciitis||

    They're all evil.

  • Hamster of Doom||

    Okay, I laughed.

    You've been doing good work this morning. I'm enjoying it. Thanks.

  • Rock Lobster||

    At least they're not proctologists. Those guys are asshloes.

  • Shirley Knott||

    Nah, they just work with assholes.
    But have you noticed how gynecologists never shut up about their work?

  • Rock Lobster||

    I've noticed they seem to have an affinity for fine, Swedish engineering... by which I mean they all drive Vulvas.

  • Eddy||

    "That's exactly the scenario that led to direct election of US Senators -- state legislators were sick of having their elections be all about who they would vote for for the Senate, rather than state-level issues."

    And (coincidentally or not) after the state legislators abdicated their power to choose U. S. Senators, more and more state-level issues became federal issues.

    So the state legislators are doubly blessed - relieved of the burden of dealing with federal affairs, and relieved of much of the burden of dealing with state affairs!

  • Chipper Morning Baculum||

  • Eddy||

    You know what the Catholic sex-abuse scandal needs? More silence, at least where charges against Francis are concerned

    ""With people lacking good will, with people who only seek scandal, who seek only division, who seek only destruction, even within the family — silence, prayer" is the path to take, Francis said in his homily during morning Mass at the Vatican hotel where he lives."

    He promised he wouldn't say a word about the accusations against him, and he's keeping the promise, by talking at length about how he's not saying a word.

  • Anti-Fasciitis||

    Who would win a fight between David Hogg and Pope Francis?

  • TLBD||

    With people lacking good will, with people who only seek scandal, who seek only division, who seek only destruction

    What an epic scumbag. People trying to hold him and his church accountable are somehow worse than child molesters in his eyes. I don't know how anyone isn't ashamed to be Catholic at this point.

  • Anti-Fasciitis||

    Didn't the Borgia popes fuck sheep on the altar in the Vatican?

  • Rock Lobster||

    Ewe!

  • Chipper Morning Baculum||

    Did you really have to ram that image into our minds?

  • Hamster of Doom||

    This should be an episode of Family Guy.

  • Rock Lobster||

    The pink Argentine would strangle the little shit with his vestments.

    After a wicked slap fight of course.

  • Chipper Morning Baculum||

  • Shirley Knott||

    Who would win a fight between David Hogg and Pope Francis?


    The viewers.

  • Eddy||

    Here is the opening paragraph of The Guardian's article about the Catholic crisis:

    "Ever since he was elected as the leader of the world's Roman Catholics, Pope Francis has been the target of conservative adversaries deeply opposed to his focus on the poor and marginalised, and his efforts to reform the church."

  • Hamster of Doom||

    *Tommy Lee Jones implied facepalm*

    -.-

  • Eddy||

    From the reactionary right-wingers at the New York Times:

    Defending Pope Francis, Allies Help Make a Critic's Case

    Oops!

  • Eddy||

    The seems to have changed the headline to "Defending Pope Francis, Vatican Allies May Strengthen Vigano's Hand"

  • Echospinner||

    I like Gorsuch because he knows the answer to the ultimate question of life, the universe and everything.

  • majil||

    Is Ginsburg still there ? Passed out drunk though ,correct?

  • MotörSteve||

    Nuh-uh! Gorsuch is Literally Hitler! It is known!

  • Eddy||

    Trump is Hitler, Gorsuch is Roland Freisler.

  • Rock Lobster||

    I thought that was Joseph Wapner's gig.

  • Fats of Fury||

    Gorsuck voted to allow states to collect tax for out of state sales. Fuck him and the other 4. So much for him being a Constitutionalist.
    Article I, Section 10, Clause 2.

  • Johnny B||

    imports and exports usually means crossing international borders...

  • loveconstitution1789||

    Gorsuch was against The Quill case standard and this created a temporary position of states trying to collect sales tax outside their state borders.

    Congress can easily fix this and there are other tax cass pending that clean up bad tax laws.

  • loveconstitution1789||

    Sorry, I was not able to post Gorsuch's concuring opinion until later.

    Limiting Government sometimes requires temporary bad outcomes based on the cases before the court.

    Gorsuch felt it was more important to get rid of Quill but that did create the skewed condition that states can collect sales tax outside their jurisdiction.

    Sales tax was already due on all internet sales but it was the state resident's responsibility to file. All this did was put the collection burden on businesses out of state and Congress can fix that because this clearly falls under the Commerce Clause for interstate sales tax collection.

  • loveconstitution1789||

    SOUTH DAKOTA, PETITIONER v. WAYFAIR, INC., ET AL.
    ON WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH DAKOTA[June 21, 2018 ]
    JUSTICE GORSUCH, concurring.
    Our dormant commerce cases usually prevent States from discriminating between in-state and out-of-state
    firms. National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967), and Quill Corp.
    v. North Dakota, 504 U. S. 298 (1992), do just the opposite. For years they have enforced a judicially created tax break for out-of-state Internet and mail-order firms at the expense of in-state brick-and-mortar rivals. See ante, at 12–13; Direct Marketing Assn. v. Brohl, 814 F. 3d, 1129, 1150 (CA10 2016) (Gorsuch, J. concurring). As Justice White recognized 26 years ago, judges have no authority to construct a discriminatory "tax shelter" like this. Quill, supra, at 329 (opinion concurring in part and dissenting in part). The Court is right to correct the mistake and I am pleased to join its opinion. My agreement with the Court's discussion of the history of our dormant commerce clause jurisprudence, however, should not be mistaken for agreement with all aspects of the doctrine. The Commerce Clause is found in Article I and authorizes Congress to regulate interstate commerce.

  • loveconstitution1789||

    (contd) Meanwhile our dormant commerce cases suggest Article III courts may invalidate state laws that offend no congressional statute. Whether and how much of this can be squared with the text of the Commerce Clause, justified by stare decisis, or defended as misbranded products of federalism or antidiscrimination imperatives flowing from Article IV's Privileges and Immunities Clause are questions for another day. [....] Today we put Bellas Hess and Quill to rest and rightly end the paradox of condemning interstate discrimination in the national economy while promoting it ourselves.

  • HANSENWT||

    And this is the wonderful part of the left....they are all in on blocking the Kavanaugh nomination knowing that they have to win the senate to bork Kavanaugh....but Kavanaugh, like Gorsuch is more mainstream of the choices Trump could have proposed so far....probably because Trump himself is more middle to left then anyone realizes. But yeah go ahead and keep messing it up for yourselves. He threw the Dems a bone with Kavanaugh but yep block it, impeach Trump and lets see who Pence brings to the table (guess if your a VP taking over a fired POTUS then you shouldn't be allowed to pick - next argument coming our way?).

  • Intelligent Mr Toad||

    Kennedy has never been a moderate. He has always been a very-far-right-winger with one or two exceptions.

    John Roberts, too.

  • loveconstitution1789||

    Kennedy and Roberts are RINOs.

    Gorsuch and Thomas are Originalists/Constitutionalists.

  • MonitorsMost||

    According to Brennan's biography, both Kennedy and O'Connor were very wary of siding with Brennan due to his propensity to slip innocuous language into opinions which he later used to support outlandish positions. O'Connor was also upset about Brennan's personal attacks in dissent. Both became more 'liberal' once Brennan was off the bench.

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