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Gorsuch Was More 'Liberal' Than Kennedy This Term, in an Unusual Supreme Court Twist

Comparing the records of two right-of-center justices.

C-SPANC-SPANHere's a curious fact about the U.S. Supreme Court term that concluded today: Justice Neil Gorsuch racked up a more "liberal" voting record than Justice Anthony Kennedy.

Specifically, Justice Kennedy did not join the Court's liberal bloc in a single 5–4 decision in the entire 2017–2018 term. That's unusual for this swing-vote justice. In previous terms, Kennedy's fifth vote has given the "liberal" side a win on such contentious issues as gay marriage and abortion regulations.

Justice Gorsuch, on the other hand, did side with the liberal bloc this term in the notable 5–4 case of Sessions v. Dimaya. That decision struck down a provision of the Immigration and Nationality Act that dealt with the power of the federal government to deport any alien, including a lawful permanent resident, convicted of an "aggravated felony." The Dimaya majority opinion was written by Justice Elena Kagan and 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.

The result of Dimaya is that it is now more difficult for the federal government to deport certain aliens under the Immigration and Nationality Act. Kennedy dissented.

Gorsuch's views look even more "liberal" than Kennedy's when you consider their respective approaches in the blockbuster case of Carpenter v. United States. In that ruling, the Supreme Court held that a warrantless government search of cellphone location data violated the Fourth Amendment. "We decline to grant the state unrestricted access to a wireless carrier's database of physical location information," the Court said.

Technically, Kennedy and Gorsuch both dissented from the Court's 5–4 judgment in Carpenter. But the content of their respective dissents was entirely different. Kennedy dissented because he thought the Court should have let the warrantless searches stand. "Individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party," Kennedy wrote. 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, Gorsuch observed, "could qualify as [your] papers" for Fourth Amendment purposes.

But because that approach was not raised by the litigants in the case, Gorsuch felt he had no choice but to frame his pro-Fourth Amendment position in the form of a dissent. Gorsuch then used that dissent as an opportunity to invite future litigants to make future arguments grounded in the "original understanding" of the Fourth Amendment.

Put differently, the whole point of Gorsuch's dissent was to nudge the Court in a direction that could prove very favorable to Fourth Amendment protections and very unfavorable to the desires of law enforcement. It was the opposite of the pro-government approach favored by Kennedy.

Since joining the Supreme Court in 1987, Justice Anthony Kennedy has managed to delight and disappoint both liberals and conservatives (and libertarians) in nearly equal measure. This term it would appear that Kennedy is going to disappoint the liberal side most of all.

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  • DajjaI||

    The confirmation of Gorsuch last year was when I knew we had averted the Trumpocalypse. Thanks to everyone who made it happen.

  • Just Say'n||

    The Trumpocalypse of Trump nominating Gorsuch?

  • DajjaI||

    Do you really believe that? It makes me feel sorry for you.

  • Just Say'n||

    I'm trying to figure how the Trumpocalypse was averted by a nomination made by Trump.

  • DajjaI||

    Oh my darling Trumpelstiltskin. This shall be our little secret.

  • Just Say'n||

    Oh...oh...OK?

  • Fancylad||

    Lol, what?
    Had a few, huh?

  • MoreFreedom||

    I interpret Daijal's "averted theTrumpocalypse" as learning Trump isn't a big government guy, and instead has very libertarian leanings. Which is exactly how I felt when he nominated Gorsuch.

    Trump is considering Mike Lee to replace Kennedy. There are few big name lawyers who are more libertarian than Lee. And if Trump nominates Lee, I believe Trump will be the most libertarian president in at least 80 years. And Lee has a good chance to get thru confirmation, considering he's an elected member of Congress. Though I wouldn't be surprised if enough Senate RINOs vote against him, because they know Lee will limit Congress' power.

  • Just Say'n||

    Now this is a hot take:

    "And if it wasn't clear before it should be now. Conservatives have weaponized the First Amendment in order to usher in Christian autocracy"

    www.twitter.com/Hegemommy/stat.....2018941953

    The Russians put the conservatives up to weaponizing the First Amendment. Damn Russians and their support for individual rights.

  • BestUsedCarSales||

    The whole reason I'm converting now is to avoid the rush once the Swiss Guard starts converting everyone at the point of the sword.

    I hate crowds.

  • Eidde||

    Don't worry, it will be a Protestant theocracy like the Handmaid's Tale, they won't be encouraging Catholic conversions.

  • BestUsedCarSales||

    Ugh, I already learned a Creed.

  • Just Say'n||

    You got a lot more to learn, too, BUCS. Start with St. Augustine and get back to us

  • Chipper Morning Baculum||

    With arms wide open?

  • Just Say'n||

    Damn, that was clever. Pulling out some Christian rock reference

    Well done

  • Colossal Douchebag||

    Just swing over to the Episcopals-- they'll give you like 80% course credit for that stuff.

  • Fancylad||

    It's kinda funny how the Protestant theocracy in Handmaid's Tale doesn't resemble any actual Protestant theocracies like Cromwell's Commonwealth of England or the Dutch Republic, but it sure does look like an Islamic State.

    It's almost like Atwood was writing about Muslims using Protestant puppets, but that couldn't be it. She's one of the woke.

  • Robert||

    In the book it didn't much seem Xtian at all, & the movie made it seem positively Jewish.

  • buybuydandavis||

    The Mole

  • ||

    She 'tazy'!

  • Eidde||

    I think we've moved beyond the Warren/Burger era when the conventional wisdom was that liberals voted for criminal defendants and suspects, while conservatives voted against them.

    Gorsuch seems to favor a property-based approach to the 4th Amendment, linking his views to the framers. 4th Amendment rights are property rights, after all. Let's get back to conservatives enforcing property rights!

  • Eidde||

    And apparently in the immigration case, Gorsuch was worried about the law's vagueness.

  • Tony||

    Yo: My lovely home state of Okla-fucking-homa legalized medical weed yesterday in a rout. The referendum language was so liberally written that someone in line at my polling place said "It is too liberal to pass in this state." Guess not.

  • BestUsedCarSales||

    What's the content of it, by the way?

  • Salmonsnail||

    Doctors decide who gets the weed.

  • Tony||

  • BestUsedCarSales||

    Seems pleasantly straightforward.

  • $park¥ The Misanthrope||

  • Tony||

    I just watched that movie like a week ago after running across it on Prime. Weird!

  • General_Tso||

    'May I take your trident, sir?'

  • Eidde||

    A movie whose title observes truth in labeling.

  • Chipper Morning Baculum||

    That's great news, Tony.

  • Ornithorhynchus||

    My fear was that it was too liberal to pass in a June primary when few people other than old people and party fanatics vote. I was sure it would likely pass had it been scheduled for November.

    Oh well, I'm glad my fears were for naught.

  • Gaear Grimsrud||

    I understand that smoking dope can really enhance the cousin fucking experience that your neighbors are so fond of.

  • Chipper Morning Baculum||

    Two birds, one cup.

    I warned everyone that if we legalized gay marriage, the world would go to shit.

  • Chipper Morning Baculum||

  • Chipper Morning Baculum||

  • Chipper Morning Baculum||

  • Just Say'n||

    And I thought scientology was a wacky religion

  • Just Say'n||

    His holy book is a print out of the president's sick burns on Twitter

  • $park¥ The Misanthrope||

    "I believe Indians can win over anyone with their spiritual powers. When you cannot take on a mighty person directly, you can win over him with love and worship and that is what I am doing,"

    He appears to have a good grasp on how The Donald operates.

  • loveconstitution1789||

    Justice Neil Gorsuch racked up a more "liberal" voting record than Justice Anthony Kennedy.

    By 'liberal' you mean Classic Liberal or more contemporarily called Libertarianism.

    Liberals are progressives which are socialists. They all wanted the Nanny-State to rule people's lives with as many rules as they can get.

  • Just Say'n||

    No, old school modern liberals were decent. Way better than progressives

  • Chipper Morning Baculum||

    Are there any good ones left?

  • Just Say'n||

    Tulsi Gabbard is great. And Wyden isn't that bad, but he gives in to the demands of the activist Left too often

  • Chipper Morning Baculum||

    Yep, agreed.

  • loveconstitution1789||

    Some of those liberals made up government power that is not enumerated in the Constitution and attacked the 2nd Amendment at every turn.

  • buybuydandavis||

    Old school liberals created the modern welfare dependency state, but they pretty good on personal freedoms like speech.

    Progressives want us ruled by by a democratically unaccountable apparatchik elite. We're free to do what they tell us, and free to take the punishment when we don't.

  • Colossal Douchebag||

    Bingo

  • Gaear Grimsrud||

    Agreed. Gorsuch looks a lot like a classical liberal to me so far. I love this guy.

  • loveconstitution1789||

    Kennedy just announced that he is retiring.

    I am rooting for another originalist justice like Gorsuch.

  • Gilbert Martin||

    "I am rooting for another originalist justice like Gorsuch."

    Let Trump appoint Janice Rogers Brown and watch the left lose their minds.

    A black woman originalist. It would show up the leftists who are always yapping about "diversity" for the hypocrites that they are.

  • buybuydandavis||

    I splooged

  • ranrod||

    Roberts, Gorusch etc etc will sell out the people and the constitution.. THEY ALREADY HAVE JOINED THE LEFT

    If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand!

    In writing to William Jarvis, Jefferson said, "You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."

    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."

  • buybuydandavis||

    But the Left has been using the Supremes for judicial authoritarianism for a century now. Getting originalists on the bench is a yuge win. It's no guarantee. But there aren't any.

  • Mark22||

    If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about.

    In reality, SCOTUS is the final arbiter of what is lawful and constitutional, whether you think that's a good thing or not.

    And that's why getting people on SCOTUS or interpret laws more narrowly is a good thing.

  • buybuydandavis||

    " This term it would appear that Kennedy is going to disappoint the liberal side most of all. "

    Bwahahahahaha!

    I bathe in a river of Leftist tears today! Yummy!

    Oh the times, they are a'changing

  • Mark22||

    While the outcomes of those cases may be something that progressives preferred based on "principals not principles", and while people like the "wise Latina" on the court may vote based on her political and cultural preferences, I don't see Gorsuch doing so. Gorsuch's decisions seem to be rooted in the principles of the rule of law, limited government, and originalist interpretation.

    Gorsuch may be viewed as "liberal" in the original sense of the word. Perhaps the terminologycal problem here is that leftists and progressives are described as "liberal" when they would be better described as "corrupt authoritarians". But any overlap between classical liberals and progressives is largely accidental.

  • Praveen R.||

    I live in a conservative Sandy Spings. The conservatives here have no problem putting rules curbing alcohol use in strip clubs, rail against billboards as visual pollution(I guess that kind of pollution bothers them more even if it is not business friendly), have a lot of codes for neighborhoods.

    Let's just say it is bullshit to say liberals have a monopoly over too much government.

  • Charise||

    I don't agree that Gorsuch's vote in Dimaya was "liberal." Gorsuch didn't like the government making a vague law - what is an "aggravated felony?" I think that vote shows more about Gorsuch's views on federalism and the Chevron doctrine, which I think are awesome. It seems like originalists, libertarians, and liberals come together - rarely.

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