When Extremism Becomes Moderation
A Comment on Justices Gorsuch and Kavanaugh
One of the remarked-upon features of last week’s tariffs case is the way in which different appointees of President Trump took markedly different positions. Justice Gorsuch and Justice Barrett voted with the majority, against the President, and Justice Kavanaugh dissented, voting to affirm the President’s tariffs. At a glance, this might lead to the conclusion that Justice Kavanaugh is the most “extreme” of the three appointees — the only one who went along with an (according to the majority) unlawful power grab. Justice Kavanaugh’s vote might even appear to reflect favoritism toward the president who appointed him.
But these conclusions are too quick. Another possibility is that Justice Kavanaugh is simply more sympathetic to certain forms of presidential power, across the board. Justice Kavanaugh worked very closely with President George W. Bush, and it was remarked during his nomination process that he had an affinity for inhabitants of the Oval Office. During President Biden’s term, this disposition made him seem more moderate — more willing to accommodate presidential discretion not to enforce the immigration laws, or a determination to enforce vaccination requirements against members of the military with religious objections. Now the same consistent sympathy has a different partisan valence when the President is different. But it is the same consistent sympathy.
The opposite could be said about Justice Gorsuch, who is enjoying newfound status as perhaps the left’s favorite Trump appointee. Justice Gorsuch may be more inclined toward liberty across the board, particularly in the sense of being more skeptical of executive power. During the Biden administration this inclination sometimes made Justice Gorsuch seem extreme, as in cases on executive branch jawboning or on COVID, such as in his “statement” in Arizona v. Mayorkas. Now the same consistent sympathy has a different partisan valence when the President is different. But it is the same consistent sympathy.
Of course, we don’t mean to claim that these Justices have treated both Presidents precisely symmetrically in every case, and exact lines of symmetry are probably impossible to draw in any event. In last month’s Illinois National Guard case, for instance, Justice Kavanaugh concurred in the Court’s judgment rejecting the Trump administration’s position, while Justice Gorsuch wrote a narrow dissent. Just over a year into the current administration, it is still too early to tell for certain how to characterize either Justice.
Even so, observers should be careful about celebrating or denigrating a Justice based on their performance during a single President’s term.
Perhaps the better lesson is that "extreme" vs. "not extreme" is not the most useful spectrum for classifying the opinions of a Supreme Court justice, at least when it's not tethered to a specific area of law. On voting rights and on immunity for presidents, for example, John Roberts looks like an extremist to me, and I am not alone in that view. In contrast, on whether a president can impose tariffs under a statute that does not give him that power, Roberts took a position that wasn't diametrically opposed to the previous understanding of mainstream lawyers.