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SCOTUS DOGE: The Wall of Receipts for President Trump's Three Appointees

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Republicans have a problem. Since the Nixon Administration, Republican Presidents have appointed sixteen out of twenty-one Supreme Court justices. But only about a third of those sixteen nominees have been principled conservative jurists. The rest either were not very conservative in the first place or simply drifted to the left. Perhaps the most confounding selection has been Chief Justice John Roberts. In his never-ending pursuit to depoliticize the judiciary, Roberts renders these faux-Solomonic decisions based on his own sense of political compromise. His decision to save the Affordable Care Act by rewriting the law's individual mandate and Medicaid expansion was just the tip of the iceberg.

These problems with Republican appointed judges are well known, and have been the source of massive frustration on the right. Ironically enough, the current Court's two most conservative members were flukes. Justice Samuel Alito was only picked after the nomination of Harriet Miers (thankfully) flamed out. And I am confident that President George H.W. Bush would have never selected Clarence Thomas had he known how conservative the jurist would be.

President Trump was gifted a golden opportunity in his first term with three Supreme Court nominees. As Trump's second term begins, with potential vacancies on the horizon, it is not too early to assess the three nominees. But how best to measure their performance? One possible benchmark is whether they built a conservative majority on the Court. On that front, they unquestionably succeeded. Justice Antonin Scalia, the conservative lion, was replaced by another conservative, Justice Neil Gorsuch. Justice Anthony Kennedy, who swung from left to right in any given case, was replaced by a more-reliable conservative in Justice Brett Kavanaugh. And Justice Ruth Bader Ginsburg, the leader of the Court's progressive wing, was replaced by Amy Coney Barrett, who briefly served on the court of appeals after a career in academia. These three jurists have cast votes in landmark cases that have unquestionably shifted the law to the right: they voted to overrule Roe v. Wade, abandoned the dreaded Lemon test, nixed most affirmative action policies, and more.

If we limit our focus to these high-level cases, the Trump trio are resounding successes. But we can look deeper. In my view, the relevant metric is not whether they have made the Court more conservative, but how they compare to the Court's most conservative appointees: are they voting with Justices Thomas and Alito, or drifting towards Chief Justice Roberts? I documented their records meticulously in a 2024 article, and have carefully tracked recent developments. On this front, the Trump appointees can be easily ranked. First, Justice Gorsuch is the member most likely to join Thomas and Alito, though he has led the liberals on significant cases concerning LGBT rights and Indian tribes. Second Justice Brett Kavanaugh started off a bit rocky, and was more likely to vote with Chief Justice Roberts, though more recently, he has settled down to preserve certain legal principles. Third, Justice Barrett has been the biggest wildcard. From her earliest days, she has consistently voted opposite Thomas, Alito, and Gorsuch with regard to emergency applications and denials of certiorari. More recently, Justice Barrett has been trending towards Chief Justice Roberts's mode of alternative dispute resolution.

You don't have to take my word for it. In the spirit of DOGE, here is the wall of receipts.

Rulings on the Emergency Docket

On the Supreme Court's emergency docket, it takes five votes to reverse a lower court's ruling. I have counted more than a dozen cases in which Justices Thomas, Alito, and Gorsuch would have granted relief on the emergency docket, while Justice Barrett and, in some cases, Justice Kavanaugh, voted in the opposite fashion. Almost all of these votes came in high-profile cases that may be viewed as controversial. I've described this dynamic as the 3-3-3 Court on the Court's emergency docket.

The common thread in each case is that Justices Thomas, Alito, and Gorsuch were willing to grant emergency relief to a conservative litigant challenging a progressive policy in a high-profile case. It would be a mistake to say that this trio is voting for the conservative causes because they are conservative justices. Rather, conservative litigants are more likely to make conservative legal arguments which are more appealing to conservative judges. Judicial philosophies matter. But in each high-profile case, which may be deemed controversial, one or two of the other Trump appointees were silent. And their silence is a pretty good indication they voted opposite of the conservative wing of the Court.

  1. South Bay United Pentecostal Church v. Newsom (2021) - Justices Thomas, Alito, and Gorsuch would have declared unconstitutional a ban on singing in church. Justice Barrett's first concurrence on the bench, which Justice Kavanaugh joined, upheld the singing ban.
  2. We The Patriots USA v. Hochul (2021) - Justices Thomas, Alito, and Gorsuch would have blocked the enforcement of a state vaccine mandate. Justices Kavanaugh and Barrett were silent.
  3. Dr. A. v. Hochul (2021) - Justices Thomas, Alito, and Gorsuch would have blocked the enforcement of a state vaccine mandate. Justices Kavanaugh and Barrett were silent.
  4. Dunn v. Austin (2022) - Justices Thomas, Alito, and Gorsuch would have blocked the enforcement of a federal vaccine mandate. Justices Kavanaugh and  Barrett were silent.
  5. Austin v. U.S. Navy Seals 1-26 (2022) - Justice Thomas, Alito, and Gorsuch would have ruled in favor of Navy Seals challenging a vaccine mandate. Justice Kavanaugh, and likely Justice Barrett, declined to grant relief.  
  6. Coalition for TJ v. Fairfax County School Board (2022) - Justices Thomas and Alito would have blocked an affirmative action policy at an elite public high school. Justices Gorsuch, Kavanaugh, and Barrett were silent.
  7. Moore v. Harper (2022) - Justices Thomas, Alito, and Gorsuch would have blocked a state supreme court's finding of a partisan gerrymander. Justice Kavanaugh, and likely Justice Barrett, declined to grant relief.
  8. NetChoice v. Paxton (2022) - Justices Thomas, Alito, and Gorsuch would have allowed a Texas regulation of social media companies to go into effect. Justices Kavanaugh and Barrett voted to allow the Texas law to be blocked.
  9. Ritter v. Migliori (2022) - Justices Alito, Thomas, and Gorsuch would have blocked the counting of undated mail-in ballots. Justices Kavanaugh and Barrett were silent.
  10. Murthy v. Missouri (2023) - Justices Thomas, Alito, and Gorsuch would have allowed a lower court to block the Biden Administration from "jawboning" social media companies. Justices Kavanaugh and Barrett likely voted to put that lower court ruling on hold.
  11. Griffin v. HM Florida-ORL (2023) - Justices Thomas, Alito, and Gorsuch would have allowed a Florida law to be enforced that prohibited restaurants from showing "adult live performances" to children. Justices Kavanaugh and Barrett allowed a lower court to block the law. 
  12. Garland v. Vanderstok (2023) - Justices Thomas, Alito, Gorsuch, and Kavanaugh would have blocked enforcement of a "ghost gun" regulation. Justice Barrett allowed the restriction to go into effect. (I am co-counsel in that case.)
  13. Moyle v. United States (2024) - Justices Thomas, Alito, and Gorsuch would have blocked the Biden Administration from requiring emergency room doctors to perform abortions. Justices Barrett and Kavanaugh did not join that opinion.
  14. DHS v. Texas (2024) - Justices Thomas, Alito, Gorsuch, and Kavanaugh would have allowed Texas to install razor wire in the Rio Grande River. Justice Barrett allowed a lower court to block Texas from doing so. 
  15. Oklahoma v. HHS (2024) - Justices Thomas, Alito, and Gorsuch would have restored Oklahoma's Title X funding, which the Biden Administration stripped after Dobbs. Justices Barrett and Kavanaugh were silent.
  16. Department of State v. AIDS Vaccine Advocacy Coalition (2025) - Justices Thomas, Alito, Gorsuch, and Kavanaugh would have blocked lower court ruling that required the Trump Administration to pay $2 billion in foreign aid funding. Justice Barrett denied the government's request for a stay.

The most recent case concerning USAID is the most significant. Justice Barrett joined Chief Justice Roberts to rule against the Trump Administration--sort of. On paper, at least, the Court rejected the federal government's urgent appeal. But in reality, the 5-4 majority opinion hinted that the lower court should reduce the amount of money that has to be spent. The Court purported to rule against Trump, while at the same time not actually ruling against Trump. This split has all the trademarks of a John Roberts compromise opinion.  This compromise was an impermissible advisory opinion. The Court lacks the power to make suggestions; it can only issue orders by granting a litigant's petition.

The outrage on social media to Justice Barrett's vote in the USAID case was swift, but largely missed the mark. The problem with this case is not that she lacked loyalty to President Trump. No judge should ever profess fidelity to any politician, full stop. Rather, the problem is this decision was yet another data point to show that Barrett is moving towards the John Roberts school of judging: rather than deciding the actual legal question presented, the Court makes "compromises" to avoid actions that could be deemed controversial. 

As I noted above, Justice Kavanaugh's earlier decisions were often with Barrett. However, increasingly, he seems to have settled in with Justices Thomas, Alito, and Gorsuch. In January, Professor Steve Vladeck of Georgetown University Law observed the emerging lineup "in which both the Chief Justice and Justice Barrett are inclined to join the Democratic appointees, but neither Justice Gorsuch nor Justice Kavanaugh are." More recently, Vladeck stated that "it's a bit alarming that Justice Kavanaugh joined the dissent" in a case involving foreign funding. I don't find Kavanaugh's votes alarming. They are reassuring. By contrast, Barrett's trend of late on the emergency docket is moving towards Roberts.

Denials of Certiorari

On the Supreme Court it takes four votes to grant a petition for writ of certiorari. The Supreme Court has near-complete discretion over its docket. A case that is not granted is a case that is not decided. In recent years, the number of the cases the Court hears has continued to drop. Court watchers have privately speculated that Justice Barrett may be the most cert-stingy Justice. Indeed, as the Court's median voter, she can largely dictate which cases to hear. If she thinks the lower court got it right, she can leave the case undisturbed. But if she thinks the lower court erred, she can take the case to reverse. "Cert-worthiness," as it is called, is largely a function of what Justice Barrett thinks. (For that reason, cert-worthiness is a poor standard to determine whether relief is warranted on the emergency docket.)

A Justice's performance can be measured based on how often he or she vote to review cases that may be deemed controversial. By my count, there have been more than ten cases where Justices Thomas, Alito, and usually, Gorsuch would have granted review, but where Justices Barrett, and to a lesser extent, Justice Kavanaugh were silent. I say silent because unless a Justice records her vote, we can only speculate. To continue the theme, almost all of these denials came in high-profile cases that may be viewed as controversial. 

  1. Republican Party of Pennsylvania v. DeGraffenreid (2021) - Justices Thomas, Alito, and Gorsuch would have reviewed a decision upholding the power of the state supreme court to alter deadlines for mailed ballots. Justices Kavanaugh and Barrett were silent.
  2. Arlene's Flowers, Inc. v. Washington (2021) - Justices Thomas, Alito, and Gorsuch would have heard the appeal of a florist who declined to make floral arrangements for a same-sex wedding. Justices Kavanaugh and Barrett were silent.
  3. Boardman v. Inslee (2021) - Justices Thomas, Alito, and Gorsucsh would have heard a challenge to a Washington law that granted employee information to unions. Justices Kavanaugh and Barrett were silent.
  4. Dignity Health v. Minton (2021) - Justices Thomas, Alito, and Gorsuch would have reviewed a challenge to a California law that required a Catholic hospital to perform a hysterectomy on a transgender patient. Justices Kavanaugh and Barrett were silent.
  5. Roman Catholic Diocese of Albany v. Emami (2021) - Justices Thomas, Alito, and Gorsuch would have reviewed a challenge to a New York mandate that religious employers must fund abortions through their employee health plans. Justices Kavanaugh and Barrett were silent.
  6. Eychaner v. Chicago (2021) - Justices Thomas, Alito, and Kavanaugh, would have reconsidered the notorious Kelo ruling concerning eminent domain. Justices Gorusch and Barrett were silent.
  7. Dr. A. v. Hochul (2022) - Justices Thomas, Alito, and Gorsuch would have reviewed the constitutionality of a state vaccine mandate. Justices Kavanaugh and Barrett were silent. This is also a case in which Kavanaugh and likely Barrett denied relief on the emergency docket.
  8. Boston Parent Coalition for Academic Excellence Corp. v. The School Committee For the City of Boston (2024) - Justices Thomas and Alito would have reviewed an affirmative action policy at an elite public school. Justices Gorsuch, Kavanaugh, and Barrett were silent.
  9. Tingley v. Ferguson (2023) - Justices Thomas, Alito, and Kavanaugh would have reviewed a Washington restriction on counseling children who present gender dysphoria. Justices Gorsuch and Barrett were silent.
  10. Parents Protecting Our Children v. Eau Claire Area School District, Wisconsin (2024) - Justices Alito, Thomas, and Kavanaugh would have reviewed a challenge to a school's policy to encourage students to "transition" without parental knowledge or consent. Justice Barrett was silent, as was Justice Gorsuch. Justice Alito warned that "some federal courts are succumbing to the temptation" to "avoid[] some particularly contentious constitutional questions."
  11. Coalition Life v. City of Carbondale (2025) - Justices Alito and Thomas would have reconsidered a precedent that upheld a buffer zone around abortion clinics. Justices Gorsuch, Kavanaugh, and Barrett were silent. 

To his credit, Justice Kavanaugh routinely notes that he would grant cases. By my count, Justice Barrett has only done so once, in a mundane case about jurisdiction. It is entirely possible that in any one of these cases, there are vehicle problems. In other words, there is some factual or procedural reason why the Court may not be able to neatly resolve the case. But could it really be that in all of these cases, Justices Thomas, Alito, and Gorsuch or Kavanaugh ignored glaring issues that Justice Barrett discerned? Are those other jurists just right-wing hacks that are taking cases to advance a conservative agenda? Or could it be, as Thomas and Alito have repeatedly noted, that the Court is simply unwilling to tackle all of these controversial issues. 

One other case bears mentioning. Ultimately, Justices Kavanaugh and Barrett cast the deciding votes to overrule Roe v. Wade. But what is less known is how long it took the Court to grant review in that seminal decision. Mississippi's petition for a writ of certiorari was filed in Dobbs in June 2020. But the case would not be granted till nearly a year later in May 2021. According to SCOTUSBlog, the case was "rescheduled nine times, then relisted 12 times." These delays likely reflect the fact that there were not four solid votes to grant review. Presumably, the conservatives would not grant the case unless they thought there were five votes to overrule Roe. The New York Times reported that Justice Barrett originally voted to grant certiorari in Dobbs. However, as the case was relisted several times, Justice Barrett switched her vote to deny certiorari. The Times said her rationale for flipping her vote was unclear. Yet, once Dobbs was granted, Justice Barrett promptly joined Justice Alito's majority opinion when granting Roe. In what was arguably the most significant case of the twenty-first century, it seems that Justice Barrett did not even want to take the case. As a result, Justice Kavanaugh would have had to become the decisive fourth vote to grant. But when Justice Barrett's vote would be visible for all to see, she joined the majority without reservation. 

The Defenses of Justice Barrett

I have seen three primary defenses of Justice Barrett. The first defense focuses on the votes she cast in blockbuster cases. Without question, she provided the deciding vote in Dobbs, the 5-4 decision that overruled Roe v. Wade. Barrett joined the majority in Kennedy v. Bremerton, which abandoned the Lemon test. And Justice Barrett joined the majority opinion in Students for Fair Admission v. Harvard, which jettisoned decades of precedent concerning affirmative action. I am pleased to praise the three Trump appointees for these votes, including Justice Barrett in particular. But, in candor, these sorts of votes should have been a given with the current composition of the Court. For decades, Justices Scalia and Thomas called on their colleagues to reverse course on abortion, religious liberty, and affirmative action. Do we give a gold star to a Republican-appointed Supreme Court justice who did what Justices Scalia and Thomas said had to be done in the 1990s? These rulings are the baseline. I find it much more fruitful to focus on the emergency docket and the certiorari denials. For all of the Court's important decisions, there are many more cases that could have been advanced, but were summarily turned away.

A second defense contends that Barrett is one of the most influential conservative jurists in decades. This metric may be true, but it does not prove very much. As I noted above, most of the Republican appointees since the Nixon Administration have not been principled conservative jurists. A simple ranking illustrates the trend. For the top spot, it is hard to decide between Justices Scalia and Thomas. Scalia was the pathbreaker for originalism, but Thomas's lengthy tenure has allowed him to see so many of his seeds grow into tall oaks. I will simply call it a tie for first. In third place is Justice, and later Chief Justice, William Rehnquist, who presided over the federalism revolution. Fourth, I would place Justice Samuel Alito, who has been a stalwart conservative for nearly two decades. I would place Justice Gorsuch at fifth, as he has provided keen insights about the separation of powers and religious liberty. Justice Kavanaugh is sixth, and the gap between him and Gorsuch seems to be closing by the term. Justice Barrett is seventh, and the gap between her and Kavanaugh is growing. Indeed, from my vantage point, Barrett is drifting towards number eight, Chief Justice Roberts. Beyond Roberts, the rankings really do not matter much. Chief Justice Warren Burger may have been conservative on criminal procedure issues and some federalism cases, but not much more. Justices Lewis Powell, Sandra Day O'Connor, and Anthony Kenendy were swing-vote moderates who usually leaned right. Justices David Souter, John Paul Stevens, and Harry Blackmun were reliable liberals. By contrast, the list of Democratic-appointed justices in the last half-century that have drifted to the right is shorter than the period at the end of this sentence.

The final defense comes from President Trump himself. On Air Force One, Trump told the press pool, Barrett is "a very good woman. She's very smart, and I don't know about people attacking her, I really don't know. I think she's a very good woman. She's very smart." Here, I cannot disagree. Barrett is unquestionably intelligent, and she is by all accounts very nice. However, being "good" and "smart" is not an appropriate test for being a Supreme Court Justice. Yet, these are the sorts of things Presidents have looked for. President George W. Bush "was impressed with [John] Roberts's intellect" and "liked [his] personal style and smooth, easygoing manner." Personality matters for an interview, but it does not determine how a Justice will decide cases. How did those smarts and niceness turn out for the Roberts Court? Given a President's focus on the &tag=reasonmagazinea-20"soft" factors, so much turns on the final roster of potential nominees presented.

Perhaps the best response to these defenses is to look at what the left is saying about Justice Barrett. In the same breath that they tar Justices Thomas and Alito as fascists, they praise Barrett. The USA Today published an essay titled "Liberals owe Justice Barrett an apology. She's clearly not in Trump's pocket." Ruth Marcus called Barrett a "pleasant surprise" in the Washington Post. And so on.

In the end, the three Trump appointees can be judged based on the votes they cast, and the votes they do not cast. These votes teach lessons, I hope, about how the next Supreme Court vacancy ought to be filled.