The New Swing Votes on the U.S. Supreme Court

Harris, Daniel | March 20, 2020

The big surprise on the U.S. Supreme Court during the October 2018 term was how often the Court’s newest members disagreed with each other. In cases with at least one dissent, Justice Neil Gorsuch and Justice Brett Kavanaugh were on opposite sides 49% of the time. Frequently, one or the other joined with the Court’s four Democratic appointees, resulting in liberal victories in cases involving federal business regulation and federal criminal law.

There is a pattern to the disagreements between the new appointees— the two Justices have profoundly different attitudes toward the federal government. Justice Kavanaugh has a positive view of the federal government. As a result, he tends to resolve ambiguities in favor of the government and the exercise of federal power. Justice Gorsuch, on the other hand, has a skeptical attitude toward federal power. He resolves doubts against the government and the exercise of federal power. As a practical matter, this means that Justice Kavanaugh is a potential liberal ally in federal regulatory cases and Justice Gorsuch is a likely ally in federal criminal cases.

Author

Adjunct Professor of Agency Law, Chicago-Kent College of Law.

Copyright 2020 by Daniel Harris

Cite as: Daniel Harris, The New Swing Votes on the U.S. Supreme Court, 114 Nw. U.L. Rev. (2020), https://scholarlycommons.law.northwestern.edu/cgi/editor.cgi?window=abstract&article=1286&context=nulr_online.