http://www.nytimes.com/2023/02/12/opinion/gorsuch-barrett-kavanaugh-conservative.html?

Trump’s Supreme Court Picks Are Not Quite What You Think

Feb. 12, 2023

By David Lat and Zachary B. Shemtob

Mr. Lat and Mr. Shemtob are lawyers and former federal law clerks.

“Nobody has ever done more for right to life than Donald Trump,” the former president told the conservative commentator David Brody last month. “I put three Supreme Court justices, who all voted, and they got something that they’ve been fighting for 64 years, or many, many years.”

Mr. Trump sought three things in his judicial appointees, or as he sometimes called them, “my judges.” First, he wanted justices who would overturn Roe v. Wade. Second, he wanted “jurists in the mold of Justices Antonin Scalia, Clarence Thomas and Samuel Alito.” Third, he wanted judges who would be loyal to him.

Opponents of abortion got what they wanted when the Supreme Court overturned Roe v. Wade, and the ramifications of that decision can’t be overstated. But did Mr. Trump get the rest of what he wanted from the justices he appointed?

Almost six years after the first appointment, we can begin to form an answer: not entirely. While conservative, none of his three appointments are nearly as conservative — nor as consistently conservative — as Justices Thomas and Alito. The Trump appointees are also not as unified as they might initially appear. Given that they could serve for decades and hold the balance of power on the current court, understanding the distinctions and differences among them is crucial, both for policymakers looking to draft laws and regulations that will be upheld and for lawyers deciding which cases to bring and how to litigate them before a reshaped Supreme Court.

How do the Trump appointees compare with Justices Thomas and Alito? Justice Thomas stands for unfettered originalism — a commitment to interpreting provisions of the Constitution based on their original public meaning at the time of their enactment, with little regard for limiting factors like legal precedent. Justice Alito, less committed to an originalist ideology, consistently votes for the conservative policy outcome in any given case. The Trump appointees, in contrast, cannot be easily characterized as either hard-core originalists or blanket partisans.

Take Mr. Trump’s first Supreme Court pick, Justice Neil Gorsuch. When observers speak of a “3-3-3” court, Justice Gorsuch is the third member of the conservative trio. In this sense, he is an heir of sorts to Justice Scalia, whose seat on the court he occupies; he “shares Justice Scalia’s legal philosophy, talent for vivid writing and love of the outdoors,” as noted by Adam Liptak.

But Justice Gorsuch parts company with the other two members of the trio, Justices Thomas and Alito, in significant ways. First, he has an intense focus on due process and a libertarian skepticism of government, which has led him to rule in favor of criminal defendants — in some cases, as the only conservative to join the liberals.

Second, he is a committed textualist, but his approach is generally more literal — or overly literal, even literalistic, to his critics — than that of other practitioners, and it sometimes leads to liberal outcomes. In Bostock v. Clayton County, Justice Gorsuch surprised many observers of the court by writing the majority opinion holding that firing someone simply for being gay or transgender violates Title VII. It is hard to imagine such a decision having come from the pen of Justice Scalia.

Justice Gorsuch also regularly joins with the liberals to rule in favor of Indian tribes. Again reflecting his libertarian streak, he does so essentially on a contract theory, arguing that the United States broke its promises to the tribes.

Some wondered whether Justice Brett Kavanaugh‌’s bitter confirmation fight would radicalize him in a rightward direction, as Justice Thomas’s did. Instead, he is now the court’s median justice, slightly to the right of Chief Justice John Roberts — with whom he voted 98 percent of the time last term — and basically a more conservative version of Justice Anthony Kennedy, whom he replaced. His signature move in hot-button cases is to write a separate concurrence that acknowledges the difficulty of the issues, points out the limits of the conservative majority’s decision and says to the left, in essence, “It’s not so bad.”

Justice Kavanaugh’s critics dismiss his concurrences as, in the words of the legal journalist Vivia Chen, “performative,” “I-feel-your-pain concurrences.” But this isn’t entirely right.

Justice Kavanaugh’s concurrence in Dobbs v. Jackson Women’s Health Organization, opining that states can’t bar their residents from traveling to other states to get abortions, effectively telegraphs how he plans to vote on that issue — and, at the very least, provides useful information for lawyers deciding whether and how to litigate cases about abortion and the right to travel. Similarly, in the landmark Second Amendment case of New York State Rifle & Pistol Association v. Bruen, Justice Kavanaugh wrote a concurrence, joined by only Chief Justice Roberts, emphasizing that states can still impose licensing requirements for firearms and a wide range of gun regulations — leaving open the possibility that the two will uphold gun laws that the other conservatives will not. The Kavanaugh concurrence should be carefully considered both by advocates handling Second Amendment cases before the court and state legislators trying to assess which gun laws might pass muster in the future.

Justice Amy Coney Barrett’s tenure is the shortest of the three, so it’s harder to draw conclusions about her. When she first joined the court, her detractors predicted she would be a Catholic conservative activist, but she has not (at least yet) assumed that role.

She could have aligned herself with a school of thought called “common-good constitutionalism” — which includes, according to one of its leading proponents, the Harvard law professor Adrian Vermeule, “a candid willingness to ‘legislate morality.’” Instead she said she is “not a fan of common-good constitutionalism” in an interview last year.

Based on her record so far, Justice Barrett might be compared with Chief Justice William Rehnquist, in terms of her clean, straightforward writing style and her reluctance to opine on issues not presented by the case before her (reflected in her relatively low number of separate concurrences, where such opining most often takes place). And there have been other surprises. In 2020, Democratic politicians opposed to her nomination confidently predicted she would hold the Affordable Care Act unconstitutional if confirmed. She voted to uphold it.

Justice Barrett did not join Justice Thomas’s concurrence, which reiterated his view that the A.C.A. is unconstitutional but rejected this particular challenge on technical grounds, and she did not join the dissent of Justice Alito, who would have declared the law unenforceable. And in Fulton v. City of Philadelphia, she declined to call for overruling Employment Division v. Smith, a precedent that is deeply unpopular among religious conservatives — even writing a concurrence explaining the practical difficulties of overruling it.

Don’t take our word for it: The significant ideological gap between Justices Thomas and Alito, on the one hand, and the Trump nominees, on the other, can be seen in their Martin-Quinn scores, a measure of judicial ideology developed by political scientists. Based on their rulings during the court’s last term, Justices Thomas and Alito earn scores of 2.949 and 2.458, the higher number signifying greater conservatism. Justices Gorsuch, Kavanaugh and Barrett earn scores of 1.019, 0.791 and 1.318, respectively — fairly close to one another, but markedly different from the two scores of the staunch conservatives anchoring the right wing of the court.

Nor do the Trump justices march in lockstep with one another. In fact, Justices Gorsuch and Kavanaugh disagreed more with each other in their first term together than any other pairing of justices appointed by the same president since the Kennedy administration, according to Adam Feldman of the blog Empirical SCOTUS. They have found themselves on opposite sides of such issues as the death penalty, defendants’ rights, immigration law and Indian law. Knowing which of the two is more likely to defect from the conservative bloc on which issue is actionable information for Supreme Court advocates. It could help conservative lawyers trying to hold together a winning coalition of justices, or it could help liberal lawyers trying to cobble together a majority for their preferred outcome — or, more realistically, trying to do damage control by limiting the sweep of an adverse ruling.

One area where the Trump appointees have agreed with one another, interestingly enough, is in ruling against Mr. Trump. This was not preordained: Judge Aileen Cannon, a Trump appointee in Florida, seemed to bend over backward to rule in his favor in the Mar-a-Lago documents litigation. Instead, much to his chagrin, Justices Gorsuch and Kavanaugh voted against Mr. Trump in Trump v. Vance and Trump v. Mazars, two cases about access to his tax and other financial records. Justices Thomas and Alito dissented in both cases. Similarly, none of “his” justices voted to hear Texas v. Pennsylvania, Texas’ challenge to the 2020 election results that was strongly supported by Mr. Trump. He then lashed out, declaring that the “Supreme Court should be ashamed of itself” — even though he appointed a third of its members.

Please don’t misunderstand us. We don’t deny that the Supreme Court has lurched sharply to the right, that this is the most conservative court in decades and that these are dark times for supporters of the rights and policies that the court is intent on curbing or even eliminating.

But at the same time, as noted by the Supreme Court advocate Roman Martinez, “The conservative wing of the court is not a monolith.” While Mr. Trump did secure three votes to overrule Roe with his appointees to the court, he did not get clones of Justices Thomas or Alito, nor did he get justices willing to protect his own hide. There are interesting and important differences of opinion among the conservative justices. And understanding these nuances is critical, especially for lawyers and legal organizations on the left who are “playing defense” before a conservative court that’s far from done with its transformation of American law.