Trump's Justices: Gorsuch to Date (Part 2)

In the previous post, we saw how studies of Neil Gorsuch's judicial record prior to his nomination by President Trump for the Supreme Court showed him to be among the most politically conservative members of the federal judiciary. We also saw how his record immediately following his appointment, the last couple of months of the Supreme Court's 2016-17 term—the spring of 2017—reflected the very same strong politically conservative leanings.

In fact, together with Justice Clarence Thomas, his record on politically charged issues was the most politically conservative on the Court. Indeed, 100% politically conservative voting in cases involving the death penalty, campaign finance restrictions, gun rights, gay rights, workers' rights, church and state, President Trump's travel ban, and similar politically divisive matters. Significantly, Gorsuch's 100% politically conservative voting record contrasted sharply with the 41% conservative decisional record of the Court as a whole. (See Trump's Justices (Part 1): Gorsuch to Date.)

Now what about Gorsuch's voting record for the next two terms on the Court—2017-18 and last term, 2018-19? Specifically, how did his voting record compare to that of the Court's other strongly politically conservative members, Justices Thomas and Samuel Alito, and to the Court as a whole? Let's take a look at the very next term, Gorsuch's first full one on the Court, the 2017-18 term (click to enlarge):

The politically charged issues confronted by the Court during the 2017-18—and voted on by Gorsuch—included Trump's travel ban (again), immigrant rights, abortion rights, gay rights, union representation, worker rights, voting rights, gerrymandering, search and seizure protections, and international human rights. In virtually every case, Gorsuch voted for the politically conservative position.

In fact, in some cases, Gorsuch took a position that was even more politically conservative than the already conservative majority or dissenting opinions. For example, in the Masterpiece Cakeshop case, where the bakery refused to create a cake for a same-sex marriage celebration, the majority of the Court ruled for the bakery on very narrow grounds. It held that the Colorado civil rights commission's decision, that the bakery was guilty of sexual orientation discrimination, was tainted by the commission members' explicit hostility to the baker's religion--comparing it to Nazi hatred of the Jews. In short, the Court majority ruled that the baker did not receive a fair hearing. But not that businesses were free to violate state anti-discrimination laws, even for religious reasons.

That decision of the Court was inadequate for Gorsuch. He authored a separate concurring opinion making the claim that the bakery did not actually engage in any discrimination at all—unlawful or otherwise. Gorsuch's rationale? The bakery would not create a same-sex cake for any couple, whether same-sex or opposite-sex. So the bakery was treating everyone the same. Not kidding!

(You know, like the old anti-miscegenation laws did not really discriminate against anyone. Everyone—black or white or Asian—was required to marry within their own race. So those laws treated everyone the same. Gorsuch's argument was reminiscent of that nonsense.)

Let's finish this post by taking a look at the ideological voting spectrum of the entire Court. Here it is (click to enlarge):

As the graph shows, Gorsuch's voting record was not only the most politically conservative on the Court, other than that of Justice Thomas, but it was also significantly more so than that of Chief Justice Roberts and the decisional record of the Court as a whole.

To be sure, the voting records of the Court's four liberal Justices, were at least as politically liberal as Gorsuch's record was politically conservative. But in nearly one-third of the cases, the Court as a whole joined the liberals, In a full one-quarter of those cases, the Chief Justice did. Gorsuch virtually never did—in fact, it was only one case. [I.e., Sessions v. Dimaya, involving the meaning of "crime of violence" as a basis for deporting immigrants.]

So once again, Justice Gorsuch's voting record on the Court—this time for the 2017-18 term—mirrors the studies based on his pre-appointment record as a federal appellate judge. In the next post, we'll look at Gorsuch's record in the next and most recent term, 2018-19.

Trump's Justices (Part 1): Gorsuch to Date

President Trump's first appointee, Neil Gorsuch, took his seat on the Supreme Court in the spring of 2017. By that time, judicial scholars--both political scientists and law professors--had studied his record on the federal appeals court from which he was elevated.

Based on his voting patterns as an appellate judge, Gorsuch's position among the other federal judges on the ideological spectrum had been mapped. Similarly, once he was nominated, his ideological place on the Supreme Court was predicted.

A 2016 study, sponsored by the University of Chicago, compiled and compared voting data on federal judges. A graph based on that data was published in the New York Times the following year when Gorsuch was nominated. It placed his record on the far right, politically conservative side of the federal judiciary. Here's that graph (click to enlarge):

Another study by a team of judicial scholars, led by Lee Epstein and published shortly following Trump's election, inserted Gorsuch among the sitting Justices on the Supreme Court's own ideological spectrum. Gorsuch was placed among the Court's most politically conservative members--between Justices Clarence Thomas and Samuel Alito. Indeed, he was determined to be even more politically conservative than the Justice he replaced, Antonin Scalia. Here's that graph (click to enlarge):

Source: Lee Epstein et al., President-Elect Trump
 and his Possible Justices (2016)

In yet another study, this one completed the following year, Gorsuch's appellate record again placed him among the Court's most politically conservative Justices. In fact, this study estimated that his policy preferences would position him at the far end of the Court's right wing. Here are those graphed findings (click to enlarge):

Source: Ryan Black, et al., Estimating the Policy
Preferences of Judge Neil M. Gorsuch (2017)

It was thus widely expected, among those who closely study such things, that Gorsuch would be a very politically conservative Justice. Not a judicial restraintist. Not a stickler for stare decisis. Not one who defers to the other branches or to the states. Not a strict constructionist. Not a faithful adherent of previously settled constitutional principles. Not a philosophical conservative in a classic libertarian sense. But a conservative in the common contemporary political sense.

In short, how would conservative Republican politicians be expected to vote on the controversial issues of the day? And how closely would Justice Neil Gorsuch's voting align with conservative politicians on those issues?

Right from the start, in his first few months on the Court--from the time of his appointment in April of 2017 to the end of the 2016-17 term that spring--Gorsuch did cast votes on many such issues. The death penalty, campaign finance restrictions, gun rights, gay rights, workers' rights, church and state, President Trump's travel ban, and other politically charged issues among them.

What kind of record did he compile at the very start of his Supreme Court career? How did his record compare to that of other conservatives on the Court in that spring of 2017? Well, take a look (click to enlarge):

Justice Gorsuch's voting record, in his very first weeks on the Court, was at least as politically conservative as the judicial studies had predicted. From his appointment in April 2017, thru the end of the Court's term in the closing days of June, he compiled a voting record which, together with that of Justice Thomas, was the most conservative of the Justices.

On every one of those previously mentioned issues confronted by the Court in those final weeks of the 2016-17 term, the Justices were divided and Gorsuch, like his colleagues, chose sides. And on every one of those issues, he chose the politically conservative position--or the most politically conservative position when there was more than one.

So, for example, on the death penalty issue, he supported the execution. On campaign finance restrictions, he was against them. Gun rights, supported them. Gay rights, against them. Workers' rights, against them. Church and state, argued for lowering the wall of separation even more than the Court majority and other conservative Justices. Trump's travel ban, argued for upholding it to an even greater extent than the Court majority and other conservative Justices.

Indeed, as displayed in the graph, he took the politically conservative side--including the most politically conservative position among his colleagues--on those and every other politically charged issue that came before the Court in that spring of 2017 immediately upon his appointment.

And note well how starkly Gorsuch's politically conservative record on those politically charged issues contrasts with the record of the Court as a whole--100% politically conservative versus 41%. When the Justices divided between politically conservative and liberal sides, Gorsuch supported the conservative position. Even when the Court majority rendered a politically conservative decision, Gorsuch would sometimes argue for an even more politically conservative resolution.

In the next post, we'll take a closer look at some of this, including how Justice Gorsuch's voting record compared to that of all of his colleagues--not just the most conservative ones. And we'll look at his voting record in the following two full terms that he's been on the Court, 2017-18 and the term that just finished, 2018-19.