The Volokh Conspiracy

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Kavanaugh v. Gorsuch—Part Deux

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


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.