Gorsuch Was More ‘Liberal’ Than Kennedy This Term, in an Unusual Supreme Court Twist

Here’s a curious fact about the U.S. Supreme Court term that concluded today: Justice Neil Gorsuch racked up a more “liberal” voting record than Justice Anthony Kennedy.

Specifically, Justice Kennedy did not join the Court’s liberal bloc in a single 5–4 decision in the entire 2017–2018 term. That’s unusual for this swing-vote justice. In previous terms, Kennedy’s fifth vote has given the “liberal” side a win on such contentious issues as gay marriage and abortion regulations.

Justice Gorsuch, on the other hand, did side with the liberal bloc this term in the notable 5–4 case of Sessions v. Dimaya. That decision struck down a provision of the Immigration and Nationality Act that dealt with the power of the federal government to deport any alien, including a lawful permanent resident, convicted of an “aggravated felony.” The Dimaya majority opinion was written by Justice Elena Kagan and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Gorsuch, who concurred in part and joined in the judgment, provided the tie-breaking fifth vote.

The result of Dimaya is that it is now more difficult for the federal government to deport certain aliens under the Immigration and Nationality Act. Kennedy dissented.

Gorsuch’s views look even more “liberal” than Kennedy’s when you consider their respective approaches in the blockbuster case of Carpenter v. United States. In that ruling, the Supreme Court held that a warrantless government search of cellphone location data violated the Fourth Amendment. “We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information,” the Court said.

Technically, Kennedy and Gorsuch both dissented from the Court’s 5–4 judgment in Carpenter. But the content of their respective dissents was entirely different. Kennedy dissented because he thought the Court should have let the warrantless searches stand. “Individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party,” Kennedy wrote. Cellphone records “are no different from the many other kinds of business records the Government has a lawful right to obtain by compulsory process.”

Gorsuch, by contrast, dissented because he favors “a more traditional Fourth Amendment approach” that asks “if a house, paper or effect was yours under law.” Cellphone records, Gorsuch observed, “could qualify as [your] papers” for Fourth Amendment purposes.

But because that approach was not raised by the litigants in the case, Gorsuch felt he had no choice but to frame his pro-Fourth Amendment position in the form of a dissent. Gorsuch then used that dissent as an opportunity to invite future litigants to make future arguments grounded in the “original understanding” of the Fourth Amendment.

Put differently, the whole point of Gorsuch’s dissent was to nudge the Court in a direction that could prove very favorable to Fourth Amendment protections and very unfavorable to the desires of law enforcement. It was the opposite of the pro-government approach favored by Kennedy.

Since joining the Supreme Court in 1987, Justice Anthony Kennedy has managed to delight and disappoint both liberals and conservatives (and libertarians) in nearly equal measure. This term it would appear that Kennedy is going to disappoint the liberal side most of all.