The Volokh Conspiracy

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Supreme Court

Barrett v. Gorsuch—Continued

Justice Gorsuch has dissented from two-thirds of Justice Barrett's majority opinions this term.


Yesterday I noted that Justices Gorsuch and Barrett have repeatedly authored dueling opinions in the brief time they have been together on the Supreme Court. Today, it happened again.

The first Supreme Court opinion released this morning was George v. McDonough, a concerning the retroactive effect of decisions invalidating Department of Veterans' Affairs regulations. Writing for the Court, Justice Barrett concluded that the subsequent invalidation of such a regulation after a veteran's benefits decision becomes final cannot support a claim for collateral relief based on clear and unmistakable error. In other words, the fact that a regulation is subsequently invalidated does not enable a veteran to challenge a prior benefit decision based upon that regulation.

Justice Barrett's opinion was joined by the Chief Justice and Justices Thomas, ALito, Kagan and Kavanaugh. Justice Sotomayor dissented alone, and Justice Gorsuch dissented, joined by Justice Breyer in full and Justice Sotomayor in part.

With today's opinion, Justice Gorsuch has dissented from four of Justice Barrett's six majority opinions this term—a full two-thirds of the opinions by the Court's newest justice! (Justice Jackson does not join the Court until this summer.)

As I noted in my prior post, Justice Barrett and Justice Gorsuch also crossed swords last term. In that case (HollyFrontier). Justice Gorsuch wrote the majority and Justice Barrett wrote the dissent. This term, however, it's Justice Barrett who has had the upper hand, and it's been Justice Gorsuch on the dissenting side.

Post-Script: Lest anyone think there is some sort of bad blood between Justices Gorsuch and Barrett, also today Justice Barrett joined Justice Gorsuch's opinion in Ysleta del Sur Pueblo v. Texas, a 5-4 decision in which Justice Gorsuch wrote for the Court, joined by Barrett, Breyer, Sotomayor and Kagan. Chief Justice Roberts dissented, joined by Justices Thomas, Alito and Kavanaugh.