Gorsuch and the Liberals

The Supreme Court released five decisions on Monday with five more (and a DIG) coming out on Wednesday. These did not include the highly publicized decisions on guns, abortion, or border policy.

The decision in Denezpi v. United States struck me as interesting based on the composition of the dissent with Gorsuch authoring for himself, Kagan, and Sotomayor (the latter two joining in parts I and III of the dissent). The majority held that the Double Jeopardy Clause does not bar successive prosecutions of distinct offenses arising from a single act, even if a single sovereign prosecutes them.

The Court’s composition with Gorsuch on one side and the rest of the conservative justices on the other side actually makes sense given Gorsuch’s decision history on the Court. Denezpi dealing with rights of the accused and a Native American tribe has two issues where we’ve seen Gorsuch side with liberal justices in opposition to the other conservative justices in the past.

On Wednesday Justice Gorsuch sided primarily with the liberals and against most of the conservative justices in two other decisions – Ysleta del Sur Pueblo v. Texas dealing with tribal rights and George v. McDonough looking at agency interpretations.  Gorsuch authored the majority opinion in Ysleta del Sur joined by Barrett, Kagan, Breyer, and Sotomayor. It is the first (and very possibly will be the only) 5-4 decision of the term with the three liberal justices in the majority.  In George v. McDonough Gorsuch dissented along with Breyer and Sotomayor. Gorsuch would have allowed service-related benefits to a former marine recruit where the Veterans Administration rejected granting any relief.

The statistics of Justice Gorsuch’s voting patterns aligning with the liberal justices are worth highlighting. Gorsuch has been in dissent joined by two or three of the liberal justices and without any additional conservatives twice in past terms — in Mont v. US (with Kagan, Sotomayor, and Ginsburg) and in Mitchell v. Wisconsin (with Sotomayor, Breyer, and Kagan). Both cases dealt with the rights of the criminally accused.

Gorsuch was in 5-4 or 6-3 majorities with all of the liberal justices thirteen times prior to this term. He authored five of these majority opinions. One possible reason for this high rate of decision writing in these cases was related to strategic considerations — primarily getting Gorsuch to join the majorities by allowing him to draft the opinions in a manner most consistent with his positions in these cases. These decisions include US v. Davis and US v. Haymond (criminal cases), Bostock v. Clayton County (a civil liberties case also joined by Roberts), McGirt v. Oklahoma (a tribal rights case), and Niz-Chavez v. Garland (an immigration case dealing with the government’s requirements in removal proceedings).

Since Bostock was the only one of these majorities that also featured Roberts, the senior justice in the majority assigned the decisions in the other cases to Gorsuch.

One other case Gorsuch as the swing vote for the liberals worth perusing is Sessions v. Dimaya. Kagan authored this opinion this decision dealing with immigration and the criminally accused (recognize a trend here?) This decision closed a loophole in the Immigration and Nationality Act which allowed for the deportation of an individual for a “crime of violence” without defining what actually constitutes a “crime of violence.”

We will see if these consistencies hold up in the future as Roberts rather than Gorsuch appears to be the conservative justice most likely to side with the liberals more generally.

Unanimity

When people think about Supreme Court decisions in June they tend to think of contentious decisions, after all, this is the month when Obergell, NFIB v. Sebelius, Shelby County, Janus, etc. were released. Put another way, the 5-4 decisions of the Court are the ones most people think about.

What about the unanimous ones. These do not generate anywhere near the same kind of hype as the ones coming down by close vote differentials. One might surmise that they make up only a sliver of the Court’s June decisions.

This week the Court released ten decisions (and one DIG). Three of these (or 30%) were unanimous –

• ZF Automotive v. Luxshare with Justice Barrett, the newest justice on the Court, authoring this complex decision holding that a district court can only permit discovery “for use in a proceeding in a foreign or international tribunal” if the tribunal is a “governmental or intergovernmental adjudicative body.”
• American Hospital Assn. v. Becerra with a majority opinion by Justice Kavanaugh holding that the federal government improperly cut more than $1 billion a year in Medicare reimbursements to hospitals. This ruling limits regulators’ power to control what the program pays for some drugs.
• Golan v. Saada with a majority opinion by Justice Sotomayor holding courts are not required to consider all possible options when refusing to return a child to their home country because it would put them at risk of physical or psychological abuse.

The substance of the decision, however, is not consequential for the purpose of understanding the data. The 30% marker is.

So how frequent are unanimous decisions in the Court’s last presumptive month of the term? As the graph below, using data from the US Supreme Court database shows, since 1946 the Court averaged 28.4% unanimous opinions in June. It will probably surprise some that historically over 1 in 4 June opinions is unanimous. This week’s pace is, therefore, right on pace with the Court’s historic average rate of unanimous decisions in June.

The high for unanimous opinions over this period was in 2013 with 67% unanimous opinions and the low was in 1953 where there were no unanimous opinions in June. At the end of the term we will have the full 2021 Term data to compare to this historic average.

What will the data show? With a highly polarized Court, perhaps more polarized than any Court in modern times, we are sure to see many split decisions.

Viking Cruises and Ysleta del Sur Pueblo

With a second day of Supreme Court opinions releases this week (on Wednesday), we saw decisions dealing with two of the recent Court’s favorite issues to tackle: arbitration and tribal law.

The outcomes are also not surprising given the justices’ recent voting practices. The Court held in the tribal law case, Ysleta del Sur Pueblo v. Texas, that the state of Texas could not prohibit the tribe from running live and electronic bingo games at the Speaking Rock Entertainment Center.

The decision marked the third time in two days where Gorsuch sided primarily with the liberal justices and against the other conservatives. In Ysleta del Sur, Gorsuch wrote the majority opinion joined by Barrett, Breyer, Sotomayor, and Kagan.

Gorsuch has voted in five tribal law decisions through the past term on the Court. He overwhelmingly sided with the liberal justices and against the other conservatives in these cases. In three decisions: Hererra v. Wyoming, Washington Licensing v. Cougar Den, and McGirt v. Oklahoma, Gorsuch sided with Kagan, Ginsburg, Breyer, and Sotomayor. It seems only fitting that Barrett joined Gorsuch to make bring the liberals into the majority in Ysleta del Sur Pueblo.

In the major arbitration decision of the day, Viking River Cruises v. Moriana, the Court once again narrowed a law protecting employees over forced arbitration as defined in their work contracts. This movement empowering the rights of employers against those of employees is consistent with the Court’s recent jurisprudence. Thomas was the lone dissenter in this decision.

From the 2005 term up through the past term the conservative justices have primarily been in the majority in arbitration decisions with the liberals splitting their votes in the majority and in dissent.

In the five labor related arbitration decisions since 2005, Justices Thomas, Roberts, Alito, Kennedy, Scalia, Kavanaugh, and Gorsuch were always in the majority (to the extent that each participated in these decisions).

By contrast Justice Kagan dissented in two of the three decisions she participated in, Ginsburg dissented in three of five decisions as did Justice Breyer, and Justice Sotomayor dissented in four of five.

These decisions showcase the limited instances where the liberal justices are in the majority in split decisions this term. Ysleta del Sur Pueblo is even more interesting with the liberals in the majority in a 5-4 decision. Stay tuned for more as the justices will have quite a jam-packed schedule if they want to get through the rest of the decisions for the term by the end of June.

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On Twitter: @AdamSFeldman