In December, Justice Kavanaugh joined Chief Justice Roberts in voting to turn away appeals arising from efforts by states to bar Planned Parenthood clinics from the Medicaid program. Justice Thomas, writing for Justices Gorsuch and Alito, questioned the motives of the justices in the majority.
“What explains the court’s refusal to do its job here?” Justice Thomas wrote. “I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’”
Ms. Wydra, of the Constitutional Accountability Center, noted that Justices Kavanaugh and Gorsuch were on opposite sides of a February decision that said lawyers may not disregard their clients’ instructions to file appeals even when the clients had agreed to waive appeals as part of their plea agreements.
Justice Kavanaugh joined Justice Sonia Sotomayor’s majority opinion. Justice Gorsuch, along with Justices Thomas and Alito, dissented.
Still, Ms. Wydra said, “the fact is that this is a conservative court, and everything we know about both of these justices is that they are also very conservative.”
There are reasons to be cautious about early assessments of justices, as studies have demonstrated that there are “freshman effects” on the Supreme Court that make it perilous to predict long-term trends. Early in their tenures, for instance, justices are less apt to dissent, according to data compiled by Lee Epstein, a law professor and political scientist at Washington University in St. Louis, and Kevin Quinn, a political scientist at the University of Michigan.
That could explain, Professor Epstein said, why Justice Kavanaugh has voted with the majority in 95 percent of the argued cases this term decided by the full court in signed decisions, while Justice Gorsuch was in the majority 82 percent of the time.
“After his controversial confirmation, Justice Thomas laid low, voting far more often with the majority in divided cases than he did in later years, as did Gorsuch,” Professor Epstein said. “Kavanaugh seems to be doing the same, hewing closely to the chief justice — the court’s new center. Whether, within a term or two, Kavanaugh joins Alito, Thomas and now Gorsuch on the far right remains to be seen.”