US president Donald Trump’s two supreme court appointees went to the same Jesuit high school in the Washington suburbs – at the same time. After attending Ivy League colleges and law schools, they worked as law clerks on the supreme court – for the same justice, in the same term.
They served as appeals court judges for more than a decade, turning out opinions that captured the attention of conservative legal groups like the Federalist Society and the Heritage Foundation. They were confirmed by tight votes, mostly along party lines.
On the supreme court, they were widely expected to be jurisprudential twins. But it turns out that there is more than a little daylight between Justice Neil Gorsuch, who joined the court in 2017, and Justice Brett Kavanaugh, who started in October after facing accusations of sexual assault, which he denied, at his confirmation hearings.
“They’re disagreeing more than we would have expected,” said Jonathan H Adler, a law professor at Case Western Reserve University. The two justices have found themselves on opposite sides in quite a few cases, including ones involving the death penalty, criminal defendants’ rights and Planned Parenthood.
Both justices lean right, but they are revealing themselves to be different kinds of conservatives. Gorsuch has a folksy demeanour and a flashy writing style, and he tends to vote with Justices Clarence Thomas and Samuel Alito jnr, the court's most conservative members.
Kavanaugh is, for now at least, more cautious and workmanlike. He has been in the majority more often than any other justice so far this term, often allied with chief justice John Roberts, who is at the ideological centre of the current court.
The two justices also have differing personal styles, said Elizabeth Wydra, president of the Constitutional Accountability Center, a liberal group. “Gorsuch came on strong – some might say too strong – when he first joined the court, staking out his positions and finding a distinct voice quickly,” she said. “Kavanaugh has kept a lower profile among his fellow justices, perhaps reflecting the cloud under which he joined the court.”
Kavanaugh has not yet completed a full term, and the court’s biggest decisions – on religious monuments, partisan gerrymandering and adding a citizenship question to the census – are yet to come. Neither of the newest justices is likely to disappoint his conservative supporters in those blockbuster cases.
But there is more to the supreme court’s work than the handful of big decisions issued at the end of June. It must also decide which cases to hear, how broadly to decide them and on what basis. In all three areas, the two justices appointed by Trump have taken different paths, with Gorsuch for now veering further to the right.
‘The middle of everything’
There was little reason to predict those differences when the two men served as law clerks to Justice Anthony Kennedy starting in the summer of 1993. “We were in the middle of everything,” Kavanaugh said in a 2017 interview, when he was still an appeals court judge.
The two clerks had already known each other for more than a decade, having attended Georgetown Preparatory School in North Bethesda, Maryland, together. Kavanaugh, now 54, was in the class of 1983. Gorsuch (51) was two years behind him. As justices, though, the two men can be a study in contrasts.
“Gorsuch is clearly more willing to sweep with a broader brush, appears less concerned about precedent and does not seem to have the same pragmatic streak that we see a little bit in Kavanaugh,” Adler said.
Gorsuch is a formalist who is committed to the interpretive tools of originalism, which looks to the meaning of the US constitution when it was adopted, and textualism, which focuses on statutory wording. He is suspicious of arguments grounded in pragmatism and impatient with lawyers who will not address him on his terms.
“We hear a lot about what makes sense in this room,” Gorsuch said at an argument last month over whether a criminal statute was unconstitutionally vague. “I’m curious about what the law is.” When he failed to get a satisfactory answer, he dismissed the lawyer. “Off you go,” he said.
That same day, in a statute of limitations case, Kavanaugh indicated that he was inclined to take account of what makes sense. “If the law is murky and we can choose one path or another reasonably as a matter of law, wouldn’t we choose the more orderly, practical approach?” he asked.
Ross Guberman, an authority on legal writing and the author of Point Taken: How to Write Like the World's Best Judges, said that Gorsuch possesses the showier writing style. "Justice Gorsuch started his first opinion with a gust of alliteration and the odd phrase 'and more besides,'" Guberman said, referring to a unanimous opinion in a decidedly minor case on the Fair Debt Collection Practices Act. (The opinion's first line: "Disruptive dinnertime calls, downright deceit and more besides drew Congress's eye to the debt collection industry.")
‘Crisp but bland’
“Justice Kavanaugh began his own with a crisp but bland line about a federal statute,” Guberman said. “ Gorsuch manages to make writing seem both fun and forced, while the early Kavanaugh seems happy to make writing just seem easy.”
The differences between the two justices are not only stylistic, as a March decision in a maritime case illustrated. Writing for the majority, Kavanaugh announced a three-part test to determine when manufacturers may be sued over the injuries their products played a role in causing. In dissent, Gorsuch said he preferred a bright-line rule to a fuzzy test that he said created uncertainty and unfairness.
“Headscratchers like these are sure to enrich lawyers and entertain law students,” he wrote of Kavanaugh’s standards, “but they also promise to leave everyone else wondering about their legal duties, rights and liabilities.”
Death penalty rulings have also shown the two justices’ varying approaches. They were on the opposite sides, for instance, of a decision in March halting the execution of a Buddhist inmate whose spiritual adviser had been excluded from the death chamber although Christian and Muslim chaplains were allowed.
“In my view, the Constitution prohibits such denominational discrimination,” Kavanaugh wrote. Gorsuch dissented. He gave no reasons, though he may have believed the inmate waited too long to object.
In another death penalty case, the court ruled for Bobby James Moore, an intellectually disabled death row inmate in Texas. The majority opinion was unsigned, and Kavanaugh did not note a dissent. Thomas, Alito and Gorsuch did. In December, Kavanaugh joined Roberts in voting to turn away appeals arising from efforts by states to bar Planned Parenthood clinics from the Medicaid program. Thomas, writing for Gorsuch and Alito, questioned the motives of the justices in the majority.
“What explains the court’s refusal to do its job here?” Thomas wrote. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’”
Caution
There are reasons to be cautious about early assessments of justices, as studies have demonstrated that there are "freshman effects" on the supreme court that make it perilous to predict long-term trends. Early in their tenures, for instance, justices are less apt to dissent, according to data compiled by Lee Epstein, a law professor and political scientist at Washington University in St Louis, and Kevin Quinn, a political scientist at the University of Michigan.
That could explain, Epstein said, why Kavanaugh has voted with the majority in 95 per cent of the argued cases this term decided by the full court in signed decisions, while Gorsuch was in the majority 82 per cent of the time.
“After his controversial confirmation, Justice Thomas laid low, voting far more often with the majority in divided cases than he did in later years, as did Gorsuch,” Epstein said. “Kavanaugh seems to be doing the same, hewing closely to the chief justice – the court’s new centre. Whether, within a term or two, Kavanaugh joins Alito, Thomas and now Gorsuch on the far right remains to be seen.” – New York Times