The Volokh Conspiracy

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Supreme Court

Barrett v. Gorsuch

Justice Amy Coney Barrett and Neil Gorsuch are disagreeing more than you might think, but Justice Barrett appears to have the upper hand.


Among the five opinions the Supreme Court released yesterday was Denezpi v. United Statesin which the Court held that the Double Jeopardy Clause does not bar successive prosecutions of distinct offenses arising from a single act, even if a single sovereign prosecutes them. Justice Barrett wrote for the Court. Justice Gorsuch dissented, joined (in part) by Justices Sotomayor and Kagan.

As Marcia Coyle notes in the National Law Journal, this is the third case so far this term in which Justice Barrett has written the majority opinion and Justice Gorsuch dissented. Unmentioned by Coyle, the two young justices also authored dueling opinions in a case last term as well, which means that Justices Barrett and Gorsuch have gone toe-to-toe in four cases so far, a particularly interesting fact given they share interpretive philosophies and were appointed by the same President.

Justice Barrett wrote for the Court in Patel v. Garland, holding that federal courts lack jurisdiction to review claims the Attorney General's decision to deny discretionary relief for an alien subject to removal. In Patel, Justice Gorsuch dissented for himself and the Court's three liberal justices.

Justice Barrett also wrote for an eight justice majority in Babcock v. Kijakazi, concerning when civil service payments constitute payments based on "service as a member of a uniformed service." Justice Gorsuch dissented alone.

These three cases are not the first three instances in which Justices Barrett and Gorsuch have crossed swords. they disagreed last term in HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association, in which Justice Gorsuch wrote for the Court to expand eligibility for hardship exemptions from federal renewable fuel mandates. Justice Barrett dissented, for herself and Justices Sotomayor and Kagan.

Given these recent splits between Justices Gorsuch and Barrett, it is worth recalling the early splits between Justices Gorsuch and Kavanaugh.

As we saw in the 1950s when President Roosevelt's appointees split on criminal procedure and civil rights cases, just because two justices were appointed by the same President, we should not always expect them to agree.

[Note: Yes, I initially wrote "Justice Roosevelt" when I meant "President Roosevelt." Homer nods.]