When US president Donald Trump got the opportunity to appoint two Supreme Court justices in less than two years in office, many commentators predicted that the bench’s conservative majority would start voting as a unified bloc, all in ideological lockstep.
It hasn’t happened.
The current stats show that Trump’s chosen judges, Neil Gorsuch and Brett Kavanaugh, agree far less than expected. And if their track record so far is any indication, by the time they complete their first full term term together in June they will have agreed on fewer decisions than any other two justices appointed by the same president since John F. Kennedy was in office in the early 1960s.
Kavanaugh and Gorsuch have a 72.73% agreement rate right now. That is almost five percentage points lower than conservatives David Souter and Clarence Thomas, two George H.W. Bush appointees who had the next lowest rate of agreement in their first term and only grew further apart over time. By the time Souter retired in 2009, he and Thomas had become ideological opposites. Souter became known to conservatives as the “stealth justice,” a liberal in conservative robes who voted with left-leaning judges on abortion and much more.
That doesn’t mean that we can expect either Gorsuch or Kavanaugh to turn into Souter. “No more Souters” became a conservative rallying cry and, according to Politico Magazine (paywall), the reason why filling the high court with reliably right-wing judges became a Republican obsession. As a result, Trump’s appointees were handpicked by Leonard Leo (paywall), head of the Federalist Society and a man who has campaigned hard to reshape the court to his strict originalist vision. He supplied lists of appropriate appointees who would meet this need (no other lawyer in the United States is known to have had such a direct influence on a president’s high court picks).
The differences in opinion between Kavanaugh and Gorsuch now undermine the popular notion that onlookers can predict the court’s decisions based on which president appointed the justices.
Kavanaugh replaced Justice Anthony Kennedy, who retired last year with a reputation as a “swing voter,” someone who just might fall on the ideological left or right, depending on the case. Kennedy ended up writing the majority opinion in Obergefell v. Hodges in 2015, the landmark case that legalized same-sex marriage. He had been appointed by conservative darling Ronald Reagan in 1988 and, like Souter, wasn’t expected to be a friend to liberals.
When Kennedy retired, some predicted that chief justice John Roberts could become the next swing voter, while Kavanaugh and Gorsuch maintained staunch conservative positions. But this month Gorsuch sided with liberals on the bench—who tend to agree with each other more often—providing the majority vote in Herrera v. Wyoming, a decision written by Justice Sonia Sotomayor that found a treaty from 1868 allowing Native Americans to hunt in “unoccupied lands” still applies today. Meanwhile, on May 13, Kavanaugh wrote the majority opinion, joined by four liberals, allowing iPhone owners to sue Apple over App Store pricing, which his conservative colleagues opposed.
Many observers on both the left and the right will see this development—that ideological independence appears to be still possible—as an encouraging sign. Roberts has said often, most notably in response to Trump’s November statements deriding a Ninth Circuit “Obama judge”) that the courts aren’t political. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,” Roberts said.
While that fact may not always be obvious to court onlookers, the evidence so far— based on Trump’s appointees to the high court and their recent decisions— indicates that it’s more than just wishful thinking.