President Trump’s two conservative Supreme Court nominations have been one of the most important accomplishments of his presidency thus far. Following the recent passing of Justice Ruth Bader Ginsburg, a third appointment to the court is an important marker in his presidency.
One of the primary reasons many conservatives voted for Trump was because they believed he could make good Supreme Court picks, and his two appointments thus far have been largely popular among Republicans. The percentage of Republicans who have a favorable view of the Supreme Court rose from 33 percent in 2015, to 75 percent in August 2019, according to polling by Pew Research.
The two current Trump picks on the court, Justices Gorsuch and Kavanaugh, have shown a healthy degree of political independence with their rulings. Gorsuch split with the rest of the conservative justices in a transgender rights case and a case concerning jurisprudence of Native American lands. Kavanaugh also tends to align more with the liberal justices than might be expected from a Republican nomination.
Two main cases have demonstrated Gorsuch’s political independence. The first was Bostock v. Clayton County, Georgia. In which he authored the 6-3 decision of the Court. Conservative justices Alito, Thomas and Kavanaugh dissented. The Civil Rights act of 1964 outlawed discrimination in the workplace on the basis of race, color, religion, sex or national origin. The majority decided that firing a person who identifies as homosexual or transgender for their sexual identity qualifies as discrimination on the basis of sex.
In the second case, McGirt v. Oklahoma, Justice Gorsuch authored the 5-4 decision of the court and was joined by Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer. The decision, based on older treaties, said that a large part of Eastern Oklahoma is Native American territory, so when Native Americans face prosecution for major crimes on reservations it must be prosecuted within federal court rather than state court.
“So, if a Native American is accused of a major crime in downtown Tulsa, the federal government, rather than the state government, will prosecute it,” Gorsuch explained in the ruling.
Justice Kavanaugh has also shown an independent streak in his rulings. He agreed with Chief Justice Roberts, the most centrist, 92 percent of the time during the 2018-2019 term and 93 percent of the time during the 2019-2020 term. While siding with the Chief Justice in most cases, Kavanaugh ended up voting with the courts more politically liberal Justices almost as often and in some cases more frequently than he voted with the Court’s more politically conservative Justices.
Additionally, Justices Gorsuch and Kavanaugh judge not based upon partisanship but based upon a consistent judicial philosophy—Originalism. The basic argument from both is that judges should rule based on the original meaning of the law, and for Kavanaugh, there is an additional emphasis on precedent.
In 2019, Justice Gorsuch wrote an editorial entitled, “Why Originalism is the best approach to the Constitution.” Gorsuch argued that the role of justices is to uphold the law, no matter the consequences of doing so. The constitution leaves many social and political questions up to voters, not to judges.
Gorsuch explained what it means to him to uphold the law regardless of political consequences, “Whether that means allowing protesters to burn the American flag (the First Amendment); prohibiting the government from slapping a GPS tracking device on the underside of your car without a warrant (the Fourth Amendment); or insisting that juries—not judges—should decide the facts that increase the penalty you face in a criminal case (the Sixth Amendment).”
Further, he argued that many of the worst supreme court decisions came about when the Court followed an impulse, rather than the original meaning of the Constitution. The two examples provided are Korematsu and Dredd Scott.
“A majority in Korematsu, unmoored from originalist principles, upheld the executive internment without trial of American citizens of Japanese descent despite our Constitution’s express guarantees of due process and equal protection of the laws,” explained Gorsuch, “A majority in Dred Scott, also disregarding originalist principles, held that Congress had no power to outlaw slavery in the Territories, even though the Constitution clearly gave Congress the power to make laws governing the Territories.”
Kavanaugh, honoring the legacy of Justice Scalia shortly after his passing in 2017 made a Keynote address at Notre Dame University. In his address, Kavanaugh agreed with Scalia’s judicial philosophy and also discussed where it can be expanded upon. He argued that the judiciary should make decisions based upon settled principles and not party preferences.
“The judge’s job is to interpret the law, not to make the law or make policy,” Kavanaugh said.
Kavanaugh and Gorsuch are right to argue that an important role of the judiciary is to impartially uphold the law. Of course, this is nearly impossible but they have done a great job to this point judging based on the original meaning of the Constitution and relevant precedent. The third nomination from President Trump is an important landmark if they are also politically independent and judge based upon a clear judicial philosophy.