Some Takeaways from Justice Kavanaugh’s First Term

[Geee]

National Review

The end of Justice Kavanaugh’s first term on the Supreme Court is a fitting time to make some observations. This has not been a year marked by many ideologically divisive landmark decisions, but the latest spate of decisions tells us a lot more than we knew a few months ago. Recall speculation during the early spring that Kavanaugh and Chief Justice Roberts, who at the time had disagreed in only one reported decision, were forming a duo that was going to block a conservative majority on the Court. In fact, Kavanaugh has been a solid member of a new four-justice conservative bloc that is often (though unfortunately not always) joined by the Chief on key decisions advancing religious liberty, reestablishing federalism and separation of powers principles, and protecting the right to private property

 

We have now seen enough to dispel a good deal of prejudgment on the junior justice. We can start with some statistics on the alignments of the justices. Among the merits decisions issued this term, Kavanaugh has disagreed with Roberts on at least part of the Court’s judgment in five cases, including Thursday’s lamentable decision on the census in Department of Commerce v. New York. That number increases to six if we add Kisor v. Wilke, where the two justices agreed with each other on the Court’s judgment but disagreed on that case’s key question of whether to overrule the Auer doctrine. (This tally excludes still another disagreement, Lorenzo v. Securities and Exchange Commission, where Kavanaugh did not participate because he had been part of the panel hearing the case in the D.C. Circuit, at which stage he dissented. A 6–2 Supreme Court affirmed the D.C. Circuit, and the two dissenters, Thomas and Gorsuch, reached the same conclusion Kavanaugh had in his earlier dissent.)