Thursday, June 11, 2020

Trump's Justices: Gorsuch to Date (Part 3)

Pandemic restrictions, transitioning to remote teaching, exams, grading, other projects, preoccupation with breaking news, etc. Now back at last.
In the first post in this series, we took a look at Justice Niel Gorsuch's voting record immediately following his appointment in the final few months of the 2016-17 term. As shown in that post, Gorsuch voted for the politically conservative side of every politically charged issue in cases involving the death penalty (pro), campaign finance restrictions (con), gun rights (pro), gay rights (con), workers' rights (con), separation of church and state (con), President Trump's travel ban (pro), and similar politically divisive matters.

Yes, there were legitimate (or semi-legitimate) arguments that supported each side in these cases. A reasonable, good-faith judge might have voted either way. But Gorsuch always chose arguments that supported the politically conservative side. Never the other side. In short, connect the dots! Moreover, Gorsuch's 100% politically conservative record was more than double the 41% conservative decisional record of the Court as a whole.

Juxtaposing his record with that of the other conservatives on the Court, as well as of the Court as a whole, in that spring of 2017 looks like this (click to enlarge).

Then, in the second post in this series, we saw that Gorsuch continued to amass a very politically conservative record throughout the 2017-18 term, his first full term on the Court. As noted in that post, in cases involving highly charged matters, Gorsuch voted for the politically conservative side virtually every time: Trump's travel ban (again, pro), immigrant rights (con), abortion rights (con), gay rights (con), union representation (con), worker rights (con), voting rights (con), ending gerrymandering (con), search and seizure protections (con), and international human rights (con). Again, connect the dots.

And again, let's juxtapose Gorsuch's voting with that of the other conservatives on the Court, as well as of the Court as a whole. His record for the first full term on the Court, the 2017-18 term, looks like this (click to enlarge).

Now, let's take a look at Gorsuch's record for the last completed term, 2018-19, his second full year on the Court. Among the cases involving those "hot-button" or politically charged issues, these were his positions:
  • American Legion v. Amer. Humanist Assn. (2019) [re: the 40 Foot Cross maintained by Maryland state government]--the majority approved the cross; Gorsuch's separate concurring opinion would have lowered the separation of church and state even more by disallowing concerned groups even to complain.
  • Dept. of Commerce v. New York (2019) [re: the Trump administration's proposed citizenship question on the census form]--the majority, in an opinion by the Chief Justice, disallowed the question because the administration's claimed justification was a lie; Gorsuch joined the dissenters' argument that the administration did have some legitimate reasons.
  • June Med. Servs. v. Gee (2019) [re: the Louisiana abortion services restriction law]--the majority summarily blocked the law from going into effect; he joined the dissenters to approve the law until it actually resulted in unduly burdening the right to choose.
  • Rucho v. Common Cause (2019) [re: partisan gerrymandering]--he voted with the majority which held that the Court should do nothing about it.
  • Bucklew v. Precythe (2019) [re: lethal injection]--he authored the majority opinion to approve the use of a method of execution on an inmate, despite the inmate's particular's medical condition that would make that method excruciating.
  • Moore v. Texas (2019) [re: intellectual disability of a death row inmate]--in this and several similar cases, the majority (which included Chief Justice Roberts and Justice Kavanaugh) halted the execution because the state applied outdated mental health standards which the Court had previously invalidated; he joined the dissent in each case to nevertheless allow the executions.
  • Murphy v. Collier (2019) [re: the Buddhist chaplain case]--the majority (which again included Roberts and Kavanaugh) halted an execution until the state honored the inmate's request to be visited by a chaplain of his faith; he joined the dissent to excuse the state and allow the execution to go forward.
  • Garza v. Idaho (2019) [re: ineffective counsel]--the majority (once more including Roberts and Kavanaugh) ruled that the defense counsel's failure to file an appeal violated the defendant's right to effective counsel; he joined the dissent arguing that the defendant's waiver of appeal upon his guilty plea disposed of the question.
  • Flowers v. Mississippi (2019) [re: race-based juror discharges]--the majority (which this time included Roberts, Alito, and Kavanaugh who authored the opinion) condemned as unconstitutional the “relentless” use of peremptory challenges by the prosecution to strike all black jurors, throughout 6 trials and retrials; he joined the dissent which declined to condemn the pattern.
Well, speaking of patterns, Gorsuch's voting pattern should be quite evident. Whether it's church and state, abortion rights, the death penalty, race-related questions, the Trump administration's initiatives, and other politically charged issues, Gorsuch voted like a conservative Republican partisan. And he did so even more than some other conservatives on the Court.

Take a look (click to enlarge):

Gorsuch's 89% politically conservative voting record for the 2018-19 term contrasts dramatically with the 50% decisional record of the Court as a whole. And remember, this is a Court where a majority of the Justices are political conservatives--who worked in politically conservative Republican administrations before being appointed by Republican presidents. It is compared to just such a politically conservative Court that Gorsuch's record is so extreme!

Indeed, Gorsuch's record for the 2018-19 term is not only significantly more politically conservative than that of conservative Chief Justice Roberts, 89% to 58%. But his record is notably more politically conservative than that of the second Trump appointee to the Court, Brett Kavanaugh.

The difference between the two Trump appointees, 89% politically conservative for Gorsuch, 74% for Kavanaugh, is underscored by the sorts of politically charged issues on which they disagreed. Take a look at some of them (click to enlarge):
Church and state, racial discrimination, the death penalty, an accused's right to effective counsel--these are among the critical areas of constitutional law in which Gorsuch took the more politically conservative side of the issue than did Kavanaugh.

To be sure, there are many many other areas of constitutional law, as well as non-constitutional but still highly charged political issues, about which we do not yet have Supreme Court decisions in which both Gorsuch and Kavanaugh participated. There are some of those in cases to be handed down by the Court within the next few weeks. That will give us more evidence of the individual and the comparative ideological leanings of the two Trump appointees. Stay tuned!