by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Neil Gorsuch and Brett Kavanaugh, perhaps more than any other Supreme Court justices in modern history, are closely connected to the president who appointed them. … That past cannot be erased, but a new prologue is being written. Gorsuch and Kavanaugh know full well that Trump’s tenure is limited. These Gen-Xers may serve nearly half a century, long after the memory of President Donald J. Trump is relegated to the history books. And after the July 4 weekend, the two Trump appointees formally declared their independence from him.
On the final day of the Supreme Court’s term, Gorsuch and Kavanaugh voted against Trump in the New York tax-return case. The vote was 7–2. Well, sort of. Gorsuch and Kavanaugh did not join Chief Justice John Roberts’s majority opinion, which held that the president was not entitled to special protections against the subpoena. Nor did they join the dissents of Justices Clarence Thomas and Samuel Alito, both of whom concluded that the subpoenas were unconstitutional. Instead, Kavanaugh and Gorsuch wrote a separate concurrence, which walked a narrow tightrope between the Court’s two poles. On paper at least, they narrowly ruled against Trump. … But their opinion laid the foundation to broadly expand the power of the presidency in the future. …
… I view this concurrence as something of a compromise. On the one hand, Gorsuch and Kavanaugh generally favor a broad conception of executive power. The two junior members of the Court were not prepared to join the chief’s opinion, which handcuffs the president’s autonomy and alters the balance of authority between the federal and state governments.
On the other hand, in this case too, Gorsuch and Kavanaugh likely could not be seen as voting in favor of the president who appointed them — especially after their contentious confirmations.