Analysis: Trump's justices give him a boost but Supreme Court's balance holds

Greg Stohr, Bloomberg News on

Published in Political News

WASHINGTON -- 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 reelection 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.


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.

In the DACA case, 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."


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