President Donald Trump’s two Supreme Court nominees – serving their first term together – did their part this week to showcase their conservative judicial philosophy and deliver on Trump’s vow to reshape the judiciary and turn the court to the right.
Brett Kavanaugh and Neil Gorsuch voted with the conservative flank on the bench in two of the most politically charged cases of the term: partisan gerrymandering and whether the 2020 census can include a question about citizenship.
For the most part, the two men, who attended the same high school and clerked for the same justice, cast consistent conservative votes. They also foreshadowed the future in some of their concurrences and dissents and votes to grant cases for the next term. Any lingering doubts about their conservative bona fides, with few exceptions, were wiped away this term.
Which isn’t to say that the two men always voted in lockstep, or didn’t side with the liberal justices at times. But in the cases that capture the public’s attention, they cast their lot with the right side of the bench.
“Candidate Donald J. Trump promised the American voters that he would appoint judges in the mold of the late Justice Antonin Scalia, a lion of the law,” said Mike Davis, a former Gorsuch clerk who served as chief nominations counsel to former Senate Judiciary Chairman Chuck Grassley, R-Iowa, and now runs a non-profit dedicated to confirming conservative nominees.
“And President Trump, in one of his most consequential achievements, delivered on that campaign promise with the appointments of Justices Gorsuch and Kavanaugh,” Davis added.
On partisan gerrymandering, Kavanaugh and Gorsuch joined the majority opinion of Chief Justice John Roberts declaring that federal courts have no role to police extreme partisan gerrymandering, slamming the courthouse doors shut to such claims. Conservatives Samuel Alito and Clarence Thomas rounded out the 5-4 majority.
It was a stinging loss for those, including liberals such as former Obama Attorney General Eric Holder, hoping that the court would step in and articulate a standard to determine when politicians go too far in drawing lines for political gain.
In the census case, Roberts ended up joining with the liberals to block the Trump administration from adding a citizenship question – for now. Kavanaugh and Gorsuch would have allowed it.
For liberals it was the latest signal that the court is prepared to take a hard turn right in the wake of Justice Anthony Kennedy’s retirement.
In the area of partisan gerrymandering, for instance, Kennedy had left open the door that the court might someday articulate a manageable standard to police cases of extreme partisan gerrymandering. Kavanaugh made the difference in the other direction.