- The Washington Times - Sunday, June 30, 2019

The U.S. Supreme Court over the past couple of weeks punctured the illusion of a hard-right conservative bench deeply divided along ideological lines, with a series of surprising rulings that defied easy categorization.

Chief Justice John G. Roberts Jr., braving criticism and even talk of impeachment from some on the right, sided with the court’s four Democratic appointees to stymie one of President Trump’s biggest priorities.

Justice Neil M. Gorsuch found common cause with the Democrats on a series of criminal justice rulings.

Yet there were moments of striking unity, including on a significant religious liberty case in which two of the Democratic appointees sided with the Republican appointees to uphold a cross memorial on public land.

A term that began with the swearing-in of Justice Brett M. Kavanaugh, who Democrats feared would cement a conservative majority, ended with a flurry of decisions that defy that label.

Republicans who dreamed of a court poised to overturn longtime liberal precedent are now far less certain, while Democrats who complain about a court embracing Mr. Trump at every turn had that argument reduced to rubble.

“Conservatives shouldn’t be dreaming of a revolutionary court that will overturn Roe, and on the flip slide liberals really have no right to be speaking about this arch-conservative majority that has to be restrained,” said Curt Levey, president of the Committee for Justice, referring to Roe v. Wade, the 1973 Supreme Court ruling that legalized abortion.

One year after the retirement of Justice Anthony M. Kennedy, who used to be the consensus pick for the nine-justice-court’s center, it’s no longer clear that there is a single fulcrum.

Chief Justice Roberts staked his claim with his decision, siding with the Democratic appointees, to halt the Trump administration’s rush to add a citizenship question to the 2020 census.

Yet he also led the court in ruling that federal judges should not police political gerrymandering fights in the states. The decision epitomized judicial restraint and drew jeers from liberals who had urged the court to take the playing field on the hot-button issue.

Over the past months, Chief Justice Roberts also sided with the Democratic appointees to keep a hold on one of Mr. Trump’s border asylum crackdown policies and to preserve federal agencies’ decision-making powers.

“Roberts isn’t motivated by any sort of ideology I can pinpoint,” said Josh Blackman, a professor at South Texas College of Law. “He is squarely in the center.”

Justice Neil M. Gorsuch also could lay claim to the center position when it comes to criminal justice and statutory interpretation. In a series of cases, he sided with the Democratic appointees to shoot down laws doling out mandatory sentencing or punishment.

He sided with the Democratic appointees in four 5-4 decisions during the nine-month term.

“He’s really found his own voice. You can call him libertarian,” said Ilya Shapiro, senior fellow at the Cato Institute.

Justice Kavanaugh, meanwhile, was the most conciliatory of the nine. He sided with the majority 91% of the time, said Adam Feldman, founder of the Empirical SCOTUS blog.

In one key move, Justice Kavanaugh, along with Chief Justice Roberts, voted not to take a case to decide whether states can block Medicaid funds from going to Planned Parenthood. They sided with the Democratic appointees on that.

Mr. Feldman said it’s too early to tell where exactly on the conservative spectrum Justice Kavanaugh would fall, though he noted that Justice Kavanaugh was usually in the company of the other Republican-appointed justices when deciding close cases.

“There is evidence that he is going to be a pretty solid conservative vote,” the scholar said.

Justice Gorsuch, aside from the statutory and criminal sentencing cases, struck common ground with Justice Clarence Thomas more than any other member of the court, at 81% of the time, according to SCOTUSblog’s stat pack.

Justice Thomas agreed with Justice Samuel A. Alito Jr. 85% of the time. It’s a significant development for Justice Thomas, who often used to write solo opinions.

“Thomas is living his best life,” said Mr. Blackman. “He’s got a crew.”

Twenty-one of the cases the court heard over the term were decided by 5-4 or 5-3 votes, but The Associated Press said just seven of those were the Republican appointees in the majority and the Democratic picks in the minority. Democratic appointees won one Republican pick to claim the majority in 10 cases.

In other cases, an anticipated ideological split didn’t appear. One was the ruling allowing the Peace Cross, a World War I memorial on public land in Bladensburg, Maryland, to remain.

Justices Stephen G. Breyer and Elena Kagan sided with the five Republican appointees to preserve the cross.

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