The left’s fears about a right-wing shift in the Supreme Court seem challenged as President Trump’s two appointments continue to vote differently from each other.
Justices Brett Kavanaugh and Neil Gorsuch have been on opposing sides before in previous decisions by the high court but they just disagreed again on three separate decisions – all on Monday, according to Law & Crime.
Gorsuch joined Justice Sotomayor in the 5-4 decision in the Herrera v. Wyoming case, upholding a hunting rights treaty entered into by the Crow Tribe regarding land in Wyoming and Montana.
“The court held that Wyoming’s statehood did not abrogate the Native American tribe’s 1868 right granted by federal treaty to hunt on the ‘unoccupied lands of the United States,'” Law & Crime reported, despite Wyoming’s statehood and the creation of Bighorn National Forest.
Justice Alito wrote the dissenting opinion and was joined by Kavanaugh.
In the case of Mission Product Holdings v. Tempnology LLC, Kavanugh agreed with the rest of the bench and left Gorsuch as the lone dissenter in the 8-1 opinion written by Justice Elena Kagan which held that “a rejection of an executory contract by a bankruptcy debtor is effectually the same as a breach of that contract outside bankruptcy.”
In Merck Sharp & Dohme Corp. v. Albrecht, Trump’s appointees reached the same judgment but had different reasons for doing so. Gorsuch joined Justice Stephen Breyer in the Court’s opinion, along with the other liberals and Justice Thomas, ruling in favor of pharmaceutical manufacturer Merck.
Kavanaugh joined the concurring opinion by Justice Alito and Chief Justice John Roberts.
The differences in Monday’s cases followed last week’s move by Kavanaugh in joining the liberal Supreme Court justices ruling in the Apple v. Pepper case that consumers have the standing to sue Apple.
In March, Trump’s judicial appointees reached decisions that did not concur, for the third time in the high court session at the time, punching a hole in the left’s narrative that the president’s nominees would quickly swing the Supreme Court to the extreme right.
In that case, Kavanaugh sided with the liberal justices on the court in blocking the execution of a death-row inmate who was not being allowed to have his Buddhist spiritual adviser present.
But Jonathan Adler, law professor at Case Western Reserve University’s School of Law, thinks the diverging opinions from Gorsuch and Kavanaugh are not an indication of any fundamental shift in their views. He noted that while the two newest justices appear to be differing in their conservative natures, broad conclusions should be avoided.
It “is possible we are beginning to see differences that are a product of their respective experiences—a difference that could explain their disagreements on questions of Indian Law, something that arises far more often on Tenth Circuit (which Justice Gorsuch sat) than in Washington, D.C. [where Kavanaugh sat],” Adler wrote in an article published in Reason on Monday.
These splits do not really show one of the Court’s newest justices as being more “conservative” than the other, but they do suggest meaningful differences in method and underlying jurisprudence. While this week Justice Gorsuch seems to have joined the Court’s liberals and Justice Kavanaugh tended to stick with the Court’s conservatives, in last week’s Apple antitrust case they split in the opposite direction.
“I am reluctant to draw broad conclusions about the meaning of these differences, as it is still early,” Adler wrote. “Trump’s two nominees to the Court are anything but carbon copies or clones of one another.”
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