Neil Gorsuch, Deputy Supreme Court Justice of the US Supreme Court, and Brett Kavanaugh, US Supreme Court Supreme Judge, attend US President Donald Trump's speech to a joint session of Congress in the US Capitol in London Washington, DC, USA, on Tuesday, February 5, 2019.
Doug Mills | Bloomberg | Getty Images
President Donald Trump loves to announce his "two great judges," the newest members of the Supreme Court, Judges Neil Gorsuch and Brett Kavanaugh.
"Justice Kavanaugh is now sitting next to Justice Gorsuch to defend your rights, your constitution and your God-given freedom," Trump said at a rally last fall. "Two great men, you will perish as great, great judges of the Supreme Court."
But as is becoming clearer, the two men are not the same when it comes to the interpretation of the law.
In the case after this term, when Kavanaugh sat on the bench for the first time, the two men did not agree ̵
The data is clear: No two judges appointed by the same president were more disunited in their first term since John Kennedy became president of Adam Feldman, the creator of Empirical SCOTUS, a blog that became the Supreme Court analyzed.
Overall, the two agreed in about 70% of the cases. In contrast, judges Sonia Sotomayor and Elena Kagan, both appointed by President Barack Obama, voted more than 96% in their first term. Chief Justice John Roberts more than 90% agreed with Judge Samuel Alito, a colleague appointed by George W. Bush.
Read more: Abortionists begin to worry about the Supreme Court judge, Brett Kavanaugh Not the ally they expected
Only the judges Clarence Thomas and David Souter come along 77% close. Souter, who is now retired, has made such a pronounced tendency to the liberals of the court that he inspired the conservative assembly call "No more Souters". In contrast, Thomas is the court's most reliable conservative.
The hard data is just one element of the gap between the two men sharing a similar career path and working together for Justice Anthony Kennedy. Those who have dealt with cases before the two judges also state that they have different styles of oral argument.
"Justice Kavanaugh is keen to set precedents in his interrogation and raises many questions about cases the court has ruled," said Willy Jay, a partner at law firm Goodwin Procter, who filed a case in December the High Court argued. 19659002] "Justice Gorsuch's questions are very rarely related to the court's precedents, and they deal with separation of powers and fundamental issues," said Jay, co-chairman of Goodwin's litigation practice.
While the two are more on one side with their conservative colleagues, the differences between them show a fragmented conservative majority, as some liberals feared, when Kavanaugh was confirmed last year as the successor to Kennedy, the longtime swing voter.
And despite their focus on some of the best known In these cases, the departments show that the views of the Supreme Court are often less predictable than observers suspect.
"There will be a strong conservative bloc," said Feldman of Empirical SCOTUS. "But in certain areas there will be many exceptions."
Read More: Supreme Court Justice Neil Gorsuch Appoints as Ultimate Vote on Native American Rights
These are the areas that will become apparent. In cases involving Native American rights, criminal law, business issues, the death penalty, and certain abortion-related issues, daylight has already broken out between the two men.
This daylight was felt in one of the court's best-known recent cases, corporate conflicts over whether iPhone owners could initiate antitrust lawsuits against Apple.
Kavanaugh, who wrote for the majority of the court in May, said that was possible. In contradiction, Gorsuch accused him of "postponing a reasonable rule in favor of a pointless one".
It was also revealed only this week when Gorsuch, who wrote for the court, issued a law that imposed certain penalties for crimes-prone weapons because the law was too vague.
"Today's ruling by the court will make it harder to prosecute violent violent crime in the future," Kavanaugh wrote deviantly.
In a March case related to product liability, Gorsuch wrote that a majority opinion written by Kavanaugh "will surely enrich attorneys and entertain law students," but "make everyone else think about their legal obligations, rights, and responsibilities." ,
In questions of more urgent social significance, the two have also dealt with each other.
In December, Kavanaugh advocated for Roberts and the court's liberals to reject a case in which two states have attempted to foreclose the planned parenthood from Medicaid funding. Gorsuch sided with the conservatives.
In February, both Kavanaugh and Gorsuch were in the minority, in a case in which they had a restrictive abortion law of Louisiana in force, but only Kavanaugh wrote an explanation of its justification take a middle ground.
And in March, Kavanaugh agreed with the majority of the court to stop the execution of a Buddhist inmate who requested that his spiritual counselor be present in the execution chamber and denied it. Gorsuch said he allowed the execution.
"Judges Gorsuch and Kavanaugh may both be Conservatives, and they were both appointed by President Trump, but they are not clones of one another," said Jonathan Adler, a professor at Case Western Reserve University's Law School recently.
Of course it is still early. Kavanaugh and Gorsuch will probably spend decades together. And judges at the beginning of their lives tend to be more cautious in their decisions and to comment on cases where disagreements are less.
"Their different approaches during this term may not indicate that they are fundamentally different on these issues, as well as pointing out that Kavanaugh is starting to slow down in his first term," said Jay of Goodwin.
While most judges tend over time to approach an ideological pole further. Kavanaugh may have been even more motivated not to make waves in his first term than most judges, given the controversy over his confirmation hearings last year.
"If he wanted that, he did a good job," Feldman said. "Percentage, he is most often the judge in the majority, voting with the majority of 91% of the time, which was the highest of all judges, if his goal was to distract the criticism and the talk about it." him, then he was probably successful. "