Neil Gorsuch’s first term on the Supreme Court adjourned for its summer recess on Monday. And although the rumors of Justice Anthony Kennedy’s retirement did not come to pass, the court did make big news. It agreed to hear a case involving President Trump’s travel ban, while unanimously allowing the ban to take partial effect in the meantime. It also issued a ruling in a religious liberty case, agreed to hear another on the rights of businesses to deny services to same-sex couples, and declined to hear a case on carrying guns in public.
Beyond the cases themselves, the decisions shed further light on Gorsuch, the court’s newest justice, whom Trump nominated in January and who took the bench in April. Gorsuch wanted the court to go even further in allowing all of the travel ban to go into effect. In this and his other decisions, Gorsuch has paid dividends for Trump more than perhaps any other move the president has made.
Gorsuch, 10 weeks in, has been one of the most conservative members on the high court. That isn’t necessarily surprising — when Gorsuch was first nominated we called him a likely “Scalia clone” based on his lower court record — but it was far from guaranteed. Other justices, such as David Souter, ended up with far more liberal records on the Supreme Court than court-watchers expected when they took their seat.
Gorsuch, in fact, may settle to the right of Scalia. In each of the 15 cases he’s weighed in on so far, Gorsuch has sided with the court’s single most conservative member, Justice Clarence Thomas. More than that, he’s joined every concurring opinion that Thomas has issued so far. That is, he didn’t just agree with Thomas on the outcomes of the case but also with the reasoning by which those outcomes were reached.
Of course, Gorsuch’s Supreme Court tenure is in its infancy. And some justices have become more liberal while on the bench. But the cases Gorsuch has seen so far have covered a wide menu of topics, including same-sex marriage, the right to counsel, patent infringement and citizenship. In two of them — Davila v. Davis and California Public Employees’ Retirement System v. ANZ Securities — Gorsuch’s vote was pivotal, leaving the final tally at five votes to four. The first of these dealt a blow to death penalty opponents, and the latter makes it more difficult to file certain class action claims.
Gorsuch’s ascendance to the court has been one of only a handful of outright policy victories for Trump. Although we cannot know how Gorsuch will rule on other issues, it seems so far that his confirmation to the Supreme Court could lead to vastly different outcomes than had Merrick Garland (former President Barack Obama’s selection to fill the vacancy left by Scalia) been confirmed by the Senate. And were Kennedy to retire, and were Trump to successfully name his replacement, the conservative Chief Justice John Roberts would likely become the court’s new swing justice. That could leave liberals with far fewer victories on the court.