Chapman Law Review


U.S. Supreme Court Justices Neil Gorsuch and Brett Kavanaugh are turning out to be quite different from each other. During the Court’s October 2018 term (ending in June 2019), in cases with at least one dissent, Justice Brett Kavanaugh and Justice Neil Gorsuch were on opposite sides 49% of the time. In the October 2019 term, the two Trump-appointed Justices again disagreed in significant cases. The thesis of this Article is that there are themes to the differences between Justice Kavanaugh and Justice Gorsuch that can be discerned from their votes and opinions. The first theme relates to jurisprudential style. Justice Gorsuch follows the tenets of legal formalism, originalism, and textualism. He is apt to find definite, fixed rules established in the past that he follows to their logical conclusions, regardless of practical consequences or policy considerations. By contrast, Justice Kavanaugh tends to be pragmatic and flexible. Less interested in original intent or logical rigor and more deferential to precedent and convention, he tends to balance competing interests and strives for reasonable solutions that make common sense in the here and now. The second area of difference lies in the Justices’ attitudes toward the federal government. Justice Kavanaugh has a positive view of the federal government and federal power. He resolves ambiguities in favor of giving federal officials reasonable discretion to address contemporary problems and meet the needs of society. In disputes between the federal government and individuals, he is inclined to vote for the government. By contrast, Justice Gorsuch has a skeptical view of the federal government. He prefers to limit the discretion of federal officials through formal rules that establish clear individual rights. In disputes between individuals and the federal government, Justice Gorsuch is more apt to side with the individual. The split between Justice Kavanaugh and Justice Gorsuch has enormous potential ramifications because it moderates their collective influence on the Court. In addition, the jurisprudential conflict between the new appointees, as expressed in their opinions, is a fascinating study in how different two Justices appointed by the same President can be.



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