The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
National Review Online published my new essay, Gorsuch and Kavanaugh Declare Their Independence from Trump. I wrote this before Joan Biskupic's latest leak, but it is consistent with my take.
Here is the introduction:
Neil Gorsuch and Brett Kavanaugh, perhaps more than any other Supreme Court justices in modern history, are closely connected to the president who appointed them. Gorsuch got his seat after Republicans stonewalled the nomination of Judge Merrick Garland and then Trump unexpectedly prevailed in the 2016 election. And any other president would have likely withdrawn his nominee after Christine Blasey Ford's allegations, but Trump dug deep, and Kavanaugh managed to cross the finish line. That past cannot be erased, but a new prologue is being written. Gorsuch and Kavanaugh know full well that Trump's tenure is limited. These Gen Xers may serve nearly half a century, long after the memory of President Donald J. Trump is relegated to the history books. And after the July 4 weekend, the two Trump appointees formally declared their independence from him.
And the conclusion:
Kavanaugh and, I suspect, Gorsuch understood this dynamic all too well. These judges were very much attuned to how they would be judged. So they split the difference. In voting for a framework that empowered future presidents to resist subpoenas, they also cast a hyper-technical vote that allowed New York's subpoena to be enforced against the current president. To the general public, the vote was 7–2. It was not unanimous, but this lopsided split was better than 5–4. And to Kavanaugh and Gorsuch, their short writing did not disturb the long-term constitutional equilibrium.
After the case was decided, Trump reportedly saw Gorsuch and Kavanaugh's "votes as a betrayal" and "expressed deep anger" at his nominees. I suspect that the duo could not care less about these White House fireworks. Independence has its perks. Soon enough, Trump will be gone. But Gorsuch and Kavanaugh will be with us for some time. With their narrow decision, they managed to separate themselves from this president but carefully guarded presidential authority for decades to come.
I will have much more to say about the Tax Return case in my third installment about the leaks.