When President Donald Trump was selecting Supreme Court nominees, his advisers spoke in exceptionally vague terms about what he was looking for in a justice, but again and again offered up the same word: “courage.”
As the court delivered its final decisions of the term in recent weeks, some conservatives complained they were not seeing as much of that trait as they would like.
Although the court continued to move in a conservative direction and split along the usual ideological lines as it handed down major 6-3 decisions on voting rights and dark money disclosure, divides on the right were also vividly on display in a series of high-profile cases this term, including the latest challenge to Obamacare and a case over Catholic social services group’s obligation to deal with same-sex couples seeking to become foster parents.
In the Affordable Care Act case, Justices Brett Kavanaugh and Amy Coney Barrett sided with the court’s liberals and other justices to reject the challenge 7-2 on standing grounds, over strenuous objections from Justice Samuel Alito and Neil Gorsuch.
And in the foster-care case, while the court ruled unanimously in favor of the Catholic organization, Barrett and Kavanaugh demurred on overturning a longstanding precedent limiting the right to defy laws for religious reasons.
That maneuver prompted Alito, Gorsuch and Justice Clarence Thomas to rip into their colleagues for signing onto “a wisp of a decision” that “might as well be written on the dissolving paper sold in magic shops.”
The fusillade of criticism continued in other cases, with Alito complaining that Barrett, Kavanaugh and other justices took an “easy out” by sending back to an appeals court a case over the death of a suspect who was held face down on the floor in a St. Louis holding cell for 15 minutes.
The justices’ orders from their final conference before their summer break also contained other disappointments for social conservatives. The court refused to review a ruling in favor of a transgender high school student in Virginia seeking to use the bathroom of choice. And it turned down review of a long-running case involving a Washington state floral shop found to have violated a state anti-discrimination law by refusing to prepare arrangements for a same-sex wedding.
This was not, as Trump suggested in little-noticed remarks on the subject, the “courage” he was looking for from his prized Supreme Court picks.
After Obamacare managed another death-defying escape at the Supreme Court last month, Trump expressed dismay about Kavanaugh and Barrett voting to reject that challenge.
“I was disappointed, and that’s the way it goes. Very disappointed, I fought very hard for them,” Trump told David Brody of Just The News a few days after the 7-2 decision.
Asked whether the ruling led him to “second guess” his nomination decisions, Trump signaled that his disenchantment went beyond the Affordable Care Act case.
“Second guessing does no good, but I was disappointed with a number of rulings that they made,” he said.
To conservative activists, every disappointment conjures up fears anchored in recent history: They fight to confirm worthy jurists to open Supreme Court seats, only to see them moderate once in the chair itself. Two of Ronald Reagan’s picks, Sandra Day O’Connor and Anthony Kennedy, and one of George H.W. Bush’s, David Souter, would go on to take centrist positions on abortion and social issues.
There haven’t been many boldly conservative decisions from the Trump appointees so far, one conservative legal advocate involved in the Supreme Court confirmation process under the George W. Bush and Trump administrations acknowledged.
But he said there are signs in this term’s same-sex foster care case and in the votes to grapple with gun and abortion rights next term that the new justices are not allergic to controversy.
“There are glimmers of courage and independence,” said the activist, who spoke on condition of anonymity. “You need to be on the court for three to five terms to figure out what a justice’s trajectory is. … Some of this is just it takes time for justices to get acclimated.”
The three new justices are voting with their Republican-appointed colleagues more often than their centrist predecessors did, the activist noted. “If you look at where Gorsuch, Barrett and Kavanaugh are…they are with Thomas and Alito much more often than Kennedy, Souter and O’Connor were,” the activist said.
Some right-leaning court-watchers say the results of the term show that much of the rhetoric used to oppose Kavanaugh, Barrett and Gorsuch at the time of their nomination was overwrought.
“I think one lesson to be learned from this is we shouldn’t pay so much attention to the alarmist critics during confirmation,” said former 10th Circuit Court of Appeals Judge Michael McConnell, a George W. Bush appointee who’s now a Stanford law professor. “I think, as is so often true, the dire predictions of extremist behavior were greatly exaggerated. Barrett and Kavanaugh have turned out to be closer to the middle of the court than an extreme.”
In particular, Democrats’ relentless suggestions at Barrett’s hearings that she would bring down Obamacare proved to be misplaced — or had their desired effect.
Liberal legal activists say their critiques of the Trump appointees were well-justified and the idea that conservatives should feel buyers’ remorse is absurd. They point to a string of consequential rulings, including the 6-3 voting-rights decision that all the court’s GOP appointees including the Trump ones signed onto on the final day of decisions last week.
“The three justices’ contempt for our democracy can’t be overstated,” said Nan Aron of the Alliance for Justice, which has campaigned for decades against Republican presidents’ high court nominees and for Democratic presidents’ ones.
Noting Barrett’s pivotal votes to roll back Covid restrictions, Aron said that while not every case in every term might come out the way Trump wanted, there’s little reason for him to be disillusioned with his picks.
“My sense is he was disappointed with the ACA case, [but] I think these justices fulfilled his dreams and those of Mitch McConnell and the Republican Party,” she said. “All three of them green-lit the death penalty, without even allowing lower courts to hear the issues.”
Aron acknowledged that some of the Trump appointees sometimes aren’t willing to go as far as Alito or Thomas, but she called those cases “few and far between.”
“It does appear that Kavanaugh and Barrett from time to time in very remote instances adopt John Roberts’ view on incrementalism,” she said. “They give all indications of reaching a result that will harm individuals across the board, but they take their time and do it slowly.”
A liberal group pressing to add more justices to the court and enact other reforms also pooh-poohed the talk of moderation from the justices.
“For all the premature talk of a moderate faction emerging on the Court this term, when it comes to cases dealing with democracy and the right to vote, the Republican justices act as a bloc,” said Brian Fallon of Demand Justice. “Democrats need to treat this like the emergency situation it is.”
Some lawyers attribute Trump’s grumbling about his appointees to a single irritant.
“He wanted them to throw the election,” said Stephen Vladeck, a University of Texas law professor who’s argued before the court. “It’s easy given all the news of the past couple weeks to lose sight of what the court did not do in October, November, December and January. … The fact his hand-picked justices did not conspire to throw the election to him probably overwhelms and outweighs all their very pro-Trumpian decisions.”
The only case this term where all three Trump appointees joined the court’s liberals while the other GOP nominees dissented involved interpretation of the key federal anti-hacking statute. Gorsuch, Kavanaugh and Barrett backed a ruling that the Computer Fraud and Abuse Act doesn’t make it a federal crime to use a computer system you have permission to use for an impermissible purpose. But whether age, legal philosophy or ideology divided the conservative justices on that case remains an open question.
While the strains of moderation from Kavanaugh and Barrett were fairly evident, looking back at the past term, it is somewhat harder to make the case that Trump’s first nominee — Gorsuch — has been a moderating influence on the court.
Indeed, Gorsuch mounted his own attacks on fellow justices in the foster-care case, accusing them of a “statutory shell game.” In this term’s executive power cases, he also pressed the court to impose sweeping remedies that some of his fellow conservatives rejected.
However, last month, Gorsuch joined the court’s liberal wing and Thomas in a 5-4 decision limiting the number of criminal defendants eligible for a 15-year mandatory minimum prison term under the Armed Career Criminal Act.
Some conservatives still feel betrayed by Gorsuch’s groundbreaking decision just over a year ago to join the court’s then-four-justice liberal camp to find that a long-existing civil rights law protects gay, lesbian and transgender Americans from discrimination in employment.
Gorsuch has also emerged as a champion for Native American rights, ruling for tribes in a couple of highly significant cases.
And statistics compiled by the Washington Post indicate that in rulings from the past term, Gorsuch agreed with the court’s liberals 66 percent of the time, while Barrett lagged slightly behind that at 65 percent and Kavanaugh came in at 71 percent agreement with the liberal wing — the same percentage Roberts posted.
“Gorsuch is a slightly different type of justice. He is less likely to be in the middle, but in the sort of way Justice Kennedy used to be, he votes often enough with the more liberal side of the court,” McConnell said.
Some say the distinctions emerging among the conservative judges are more about temperament and pacing than ideology.
“I don’t think any of these votes suggest Kavanaugh or Barrett have softened their views. What they suggest is they are in less of a hurry. That’s not the same as what the arch-conservatives want to say: that they turned mushy,” Vladeck said.
And for those liberal activists accustomed to predicting doom and gloom, there’s a potential we-told-you-so moment ahead.
Even if Trump appointees held back a bit this term, many left-leaning lawyers say, the court is poised to lurch sharply to the right next term as it grapples with potentially momentous cases involving gun rights and abortion.