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Trump’s Justices Give Him a Boost But Supreme Court’s Balance Holds

Bloomberg logo Bloomberg 7/11/2020 Greg Stohr
a group of people walking in front of United States Supreme Court Building: A person takes a photograph of the U.S. Supreme Court building in Washington, D.C., U.S., on Tuesday, July 7, 2020. The court is preparing to issue the final opinions of its 2019-20 term starting today and will be ruling on congressional and New York grand jury subpoenas for President Donald Trump's financial records and on Trump's effort to carve out a broad religious exemption from the Obamacare requirement that employers and universities offer free contraceptives on their health-care plans. © Bloomberg A person takes a photograph of the U.S. Supreme Court building in Washington, D.C., U.S., on Tuesday, July 7, 2020. The court is preparing to issue the final opinions of its 2019-20 term starting today and will be ruling on congressional and New York grand jury subpoenas for President Donald Trump's financial records and on Trump's effort to carve out a broad religious exemption from the Obamacare requirement that employers and universities offer free contraceptives on their health-care plans.

(Bloomberg) -- President Donald Trump got much of what he wanted in the two U.S. Supreme Court justices he appointed. It just wasn’t enough in a term that showed how hard it is to tip the court’s balance.

Justices Neil Gorsuch and Brett Kavanaugh embellished their conservative credentials in their second term together, which ended Thursday with a split decision on subpoenas for Trump’s financial records. With a handful of exceptions, the pair pulled the court to the right in ideologically divisive cases, in a move only partly offset by Chief Justice John Roberts’s tack to the left.

“It would be difficult to dispute the fact that Justices Gorsuch and Kavanaugh have, so far, voted consistently as judicial conservatives, including in cases regarding religious liberty, abortion rights and constitutional structure,” said Rick Garnett, a constitutional law professor at the University of Notre Dame.

The subpoena rulings, which advanced a New York grand jury investigation involving Trump but probably left his tax returns shielded from public view through the election, were a fitting finale to a term that left almost everybody with victories to cherish and wounds to nurse.

The mixed bag was almost entirely the doing of Roberts. Once a steadfast conservative vote himself, the chief justice joined the court’s liberal wing to deliver narrow victories for abortion rights and the DACA deferred-deportation program. Kavanaugh and Gorsuch dissented from both 5-4 rulings.

The term’s final rulings came as Trump ramps up his re-election campaign by seeking to galvanize his political base with calls to remake the judiciary with more conservative judges, a key issue that fueled his first presidential run.

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The abortion ruling struck down a Louisiana requirement that clinic doctors get hospital privileges, with Roberts saying the law was identical to a Texas measure the court voided in 2016. In characteristically sweeping language, Gorsuch accused the majority of discarding the normal rules of judicial restraint in order to invalidate an abortion law.

“The real question we face concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom,” Gorsuch wrote.

Kavanaugh Hallmark

In the DACA case, both Gorsuch and Kavanaugh would have let Trump rescind the Obama-era program, which protects more than 650,000 immigrants from deportation and lets them seek jobs. The program affects people who were brought to the U.S. illegally as children. The majority said the Trump administration’s explanation for scrapping the program was inadequate.

The DACA case included what is becoming a Kavanaugh hallmark: a separate opinion explaining exactly what in his view the court had, and had not, decided. He said the ruling would let the Department of Homeland Security “relabel and reiterate” its cancellation of the program, “perhaps with some elaboration.”

The biggest exception to their conservative outcomes came on LGBT rights, when Gorsuch wrote the court’s 6-3 decision interpreting Title VII of the 1964 Civil Rights Act as barring discrimination based on sexual orientation and gender identity.

“Gorsuch stuck to his textualism commitments to reach a result that conservatives did not like,” said Gillian Metzger, a constitutional law professor at Columbia Law School. “But you’re not going to get conservative or liberal justices voting in lockstep in every case.”

Gorsuch also joined the liberals in a 5-4 ruling that said much of eastern Oklahoma, including Tulsa, remains American Indian territory. He said the federal government had promised the land to the Creek Nation in two treaties in the 1830s.

“Because Congress has not said otherwise, we hold the government to its word,” Gorsuch wrote. The ruling raises questions about Oklahoma’s power to prosecute Native Americans and enforce regulations. Kavanaugh dissented.

Subpoena Opinion

Unlike Gorsuch, Kavanaugh didn’t cast the pivotal vote to join the liberals in any 5-4 majority this term, according to Adam Feldman, creator of empiricalscotus.com, which tracks Supreme Court trends.

Like Roberts, Kavanaugh tends to prefer narrow rulings, and he agreed with Roberts more than any other justice, according to Feldman’s statistics. But Kavanaugh joined Roberts and the liberals only twice in 6-3 majorities in argued cases, including a clash over the scope of the Clean Water Act.

“There was some thought, when Justice Kavanaugh joined the court, that he would provide cover for the chief justice by joining the chief when he did something that disappointed conservatives,” said David Strauss, a constitutional law professor at the University of Chicago Law School. “But that hasn’t really happened.”

In the marquee cases of the term, the fights over Trump’s financial records, Kavanaugh and Gorsuch voted with Roberts and the liberals to reject the president’s bid for a sweeping shield from state grand jury investigations.

But even there, the two added a pro-presidential spin. Rather than join Roberts’ majority opinion, Kavanaugh wrote separately to say state grand juries should have to show a “demonstrated, specific need” for presidential records -- a tough standard the chief justice chose not to apply. Gorsuch joined Kavanaugh’s opinion.

In argued cases alone, the court issued nine 5-4 opinions with the five Republican-appointed justices -- Gorsuch, Kavanaugh, Roberts, Clarence Thomas and Samuel Alito -- in the majority, Feldman said. That doesn’t include a significant number of emergency applications that divided the court along ideological lines.

Gorsuch and Kavanaugh were on board for a trio of rulings that bolstered religious rights. Joining the other conservatives, they were part of a 5-4 decision that upheld Trump administration rules giving employers a broad right to refuse to offer birth control through their health plans.

The same group boosted school vouchers by saying states must include religious schools in programs that offer taxpayer subsidies for private education. And Kavanaugh and Gorsuch were in the majority in a 7-2 decision that shielded sectarian schools from discrimination suits by teachers whose jobs include teaching religion.

CFPB and Guns

They both said Congress violated the Constitution when it tried to insulate the Consumer Financial Protection Bureau director from being fired by the president. A splintered court eliminated the provision that shielded the director.

Each was on board when the court voted 5-4 to back Republicans and impose a deadline for mailing absentee ballots in Wisconsin’s presidential primary. Likewise, they were part of a 5-4 majority to block a lower court order that would have made it easier for some people to cast ballots in Alabama.

They were in a 5-4 majority that cleared the Trump administration to start enforcing a new test to screen out green-card applicants seen as being at risk of becoming dependent on government benefits.

And both suggested they were eager to take up a Second Amendment case, even if some of their colleagues weren’t. Gorsuch dissented when the court dropped a clash over New York City handgun-transportation restrictions after the city changed its law. Kavanaugh said the justices should have heard a challenge to a New Jersey law that sharply restricts who can get a permit to carry a handgun.

“The Trump administration has succeeded in stacking the federal judiciary with many very conservative judges,” Metzger said. “I think that holds overall true for Justices Gorsuch and Kavanaugh, who have been solid conservative votes on many central issues.”

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