Conservative justices surprise court watchers with swing votes

The Supreme Court is settling into its new conservative majority, but rulings from the recently wrapped-up term show that right-leaning justices don’t see eye-to-eye on some of the highest-profile cases.

While the additions of Justices Neil Gorsuch and Brett Kavanaugh — both appointed by President Trump — have shifted the high court to the right, the newest members and Chief Justice John Roberts surprised court watchers by occasionally forging unlikely alliances with their liberal counterparts on the bench.

Roberts came through as the swing vote in the ruling against adding a citizenship question to the 2020 census, while Gorsuch twice in the court’s final week joined the liberal bloc to strike down criminal statutes.

{mosads}Kavanaugh similarly raised eyebrows earlier in the term when he ruled against Apple in an antitrust case that caused some of the country’s staunchest conservatives to question his loyalty to the president who appointed him.

Legal experts agree that none of the conservative justices has clearly emerged as a swing vote, the role played by former Justice Anthony Kennedy ahead of his retirement last year. But that doesn’t mean the three justices will necessarily stick to the conservative line going forward.

“Collectively, we may have the three of them acting as swing votes in a number of different areas,” Susan Bloch, a law professor at Georgetown University, told The Hill.

As Kavanaugh adjusted to his new position on the Supreme Court, he generally stayed close to his more right-leaning allies. Data collected by statistician Adam Feldman for SCOTUSblog shows that Kavanaugh was most fully aligned with Roberts during the term, siding with the chief justice at least partially 94 percent of the time.

However, Kavanaugh and Gorsuch had a significant amount of daylight between their rulings: They agreed 70 percent of the time, the lowest percentage of agreement that Kavanaugh had with other conservative members of the court. Only Gorsuch’s alignment with Roberts was lower, at 68 percent.

{mossecondads}Bloch said she wasn’t necessarily surprised that two justices appointed by the same president weren’t always on the same page when it came to Supreme Court opinions.

“What page they’re on is harder to predict,” she added.

Feldman, who also runs the blog Empirical SCOTUS, told The Hill that, as a first-term justice still learning the ropes, it’s not surprising that Kavanaugh was aligned closely with other conservatives on the bench.

He added that after facing a tumultuous confirmation process with high-profile allegations of sexual assault, Kavanaugh may have sought to maintain a low profile during his first year on the court.

But Bloch offered a different viewpoint, saying she believed Kavanaugh was ruling on each case based on its legal merits, and not in any way reflective of how he got on the bench.

“I’m sure he hated the confirmation process, but I would be surprised if he’s trying to do anything other than hope people forget about it,” Bloch said. “I can’t imagine he’s trying to sort of strategically vote with the confirmation process in mind, partly because I don’t think that’s the way he thinks and partly because I think it’s an impossible task.”

The newest member of the court was the swing vote in only one case this term, siding with the liberal justices to find that a class-action lawsuit against Apple over app prices can move forward.

That ruling sparked some criticism from conservatives like Ben Shapiro and Rush Limbaugh, who said Kavanaugh’s decision played into some concerns they had surrounding just how far to the right he would rule.

Feldman’s data shows that Gorsuch was the conservative justice who most frequently crossed the ideological divide to side with liberals in split decisions, serving as the fifth vote in those 5-4 rulings. He did so four times during the term.

Still, Gorsuch tended to break with the conservative majority on challenges to criminal statutes. He was the fifth vote last month for an opinion that struck down a federal law that authorized further charges for gun offenses relating to “a crime of violence,” writing in the court’s majority opinion that the statute was “too vague.”

Gorsuch pulled a repeat performance just two days later, finding that a statute on mandatory minimum sentences for sex offenders who violate the terms of their supervised release was unconstitutional.

Feldman said that Gorsuch, much like Kennedy, tends to branch out on his own when it comes to cases involving individual liberties. His higher percentage of splitting from the conservative majority may be more of an indication of the kinds of cases the Supreme Court heard this past term than anything else, Feldman added.

However, the conservative justices weren’t the only ones to cross the ideological aisle: Justices Stephen Breyer and Ruth Bader Ginsburg each joined more conservative justices to create the majority in two separate 5-4 rulings this term.

Feldman also found that this past term offered the most varied lineups in rulings since Roberts was tapped as chief justice in 2005, with 10 different groupings of the justices appearing in opinions.

Even as the court’s ideological spectrum shifts to the right, Feldman noted that Roberts remains a conservative who tends to vote accordingly.

For example, Roberts delivered the fifth vote in the court’s ruling last week that federal courts can’t rule on claims of partisan gerrymandering, a victory for conservatives.

However, both Feldman and Bloch cited Roberts’s reputation as an institutionalist who seeks to preserve the integrity of the court from political attacks as helping to make him a key vote in some of the most high-profile and divisive cases.

Feldman pointed to Roberts’s swing vote in last week’s 5-4 ruling in the census citizenship question decision as him potentially playing that role yet again; he provided the swing vote in the Supreme Court’s previous ruling upholding the Affordable Care Act.

The census citizenship question ruling is “a great example of a case where Roberts would be particularly pensive and practical about where his position was, because a case like that has political implications that a lot of people that might not otherwise follow the court probably pay attention to,” Feldman said.