Since his inauguration on January 20, 2017, President Donald Trump has appointed two United States Supreme Court Justices.
The first Trump appointee to the Supreme Court, Neil Gorsuch, was named to the seat formerly held by the late Justice Antonin Scalia. Although President Barack Obama had nominated Judge Merrick Garland to the seat, Republican Senate leadership stonewalled the nomination in order to preserve the seat for a possible future Republican president. Gorsuch was nominated by Trump on January 31, 2017, and confirmed on April 7, 2017, by a vote of 54-45 – after Republican leadership changed Senate rules to allow his nomination to go forward with fewer than 60 votes. See AFJ’s report on Gorsuch here.
The second Trump appointee to the Supreme Court, Brett Kavanaugh, was nominated to the seat vacated upon Justice Anthony Kennedy’s retirement. Kavanaugh was nominated on July 9, 2018, and confirmed on October 6, 2018, by a vote of 50-48. Kavanaugh’s confirmation process was highly controversial and marked by allegations of past sexual misconduct, including public testimony by Dr. Christine Blasey Ford that Kavanaugh had sexually assaulted her when both were teenagers. See AFJ’s report on Kavanaugh here.
July 31, 2020: Gorsuch and Kavanaugh joined a 5-4 order that allowed the Trump Administration to continue to spend federal funds on a border wall while a legal challenge to the wall continues; even though a lower court had found that the Administration illegally diverted money to the project that was not authorized by Congress.
July 14, 2020: Gorsuch and Kavanaugh joined a 5–4 unsigned opinion allowing the Trump Administration to resume federal executions for the first time in 17 years. The opinion was issued at 2:00 AM, just hours after the D.C. Circuit had denied the Trump Administration’s request to reverse a district court order staying the execution and expediting briefing. Shortly after the Supreme Court’s opinion, Daniel Lewis Lee was executed. As Justice Sotomayor noted in dissent, “The Court hastily disposes of respondents’ Eighth Amendment challenge to the use of pentobarbital in the Federal Government’s single-drug execution protocol.” She added, “because of the Court’s rush to dispose of this litigation in an emergency posture, there will be no meaningful judicial review of the grave, fact-heavy challenges respondents bring to the way in which the Government plans to execute them.”
July 9, 2020: Kavanaugh dissented from a 5-4 decision of the Court that upheld the sovereignty of the Muscogee (Creek) Nation over land in Oklahoma that had been given to the tribe by Congress pursuant to a Treaty in 1833. Kavanaugh joined Roberts’ dissent, which argued that the state of Oklahoma has jurisdiction over the land, even though, as Gorsuch pointed out in the majority opinion, only Congress has the power to disestablish a reservation, and it has not done so.
July 8, 2020: Kavanaugh and Gorsuch joined a decision of the Court that ruled that employment nondiscrimination laws do not apply to religious organizations when it comes to any employee they might deem a “minister,” including teachers who provide religious instruction. The decision upheld the firing of two Catholic elementary school teachers, one for her age and the other for seeking treatment for breast cancer. This ruling clears the way for religious organizations to discriminate against employees in ways that are prohibited by federal law.
July 8, 2020: Kavanaugh and Gorsuch joined a decision of the Court that upheld the Trump administration’s guidelines allowing employers to refuse to cover employees’ contraception if they have a religious or moral objection. This vastly expands a previous exception made by the Court, which allowed religious groups to opt out of contraception coverage. As a result of this ruling, 70,000 to 126,000 people could lose contraception coverage from their employers.
July 2, 2020: Kavanaugh and Gorsuch joined a 5–4 order of the Court blocking a lower court ruling allowing curbside voting and waiving absentee ballot requirements during the COVID-19 pandemic in Alabama. U.S. District Judge Abdul Kallon had issued a preliminary injunction after finding that Alabama’s election rules will cause sick or elderly voters to “likely face a painful and difficult choice between exercising their fundamental right to vote and safeguarding their health, which could prevent them from casting a vote in upcoming elections.”
June 30, 2020: Kavanaugh and Gorsuch joined a 5–4 decision of the Court that held that if a state funds private schools or education programs, it must also fund religious school programs. The decision effectively overturns 37 states’ constitutions prohibiting state funding to sectarian institutions. This decision not only undermines the Constitution’s Establishment Clause, but further endangers public school funding. Gorsuch also joined a concurrence by Justice Thomas suggesting that the Establishment Clause does not apply to states.
June 29, 2020: Kavanaugh and Gorsuch dissented from a 5-4 decision of the Court that struck down a Louisiana law that would require abortion providers to have admitting privileges at local hospitals. Despite the fact that the law was identical to a Texas law that the Supreme Court struck down in 2016, Kavanaugh and Gorsuch argued that the law did not violate the constitutional right to an abortion. Had Kavanaugh and Gorsuch’s view prevailed, all but one abortion clinic in Louisiana would have closed.
June 29, 2020: Kavanaugh and Gorsuch joined a 5-4 majority to rule that the structure of the Consumer Financial Protection Bureau (CFPB) is unconstitutional. This clears way for the president to fire the director of the CFPB with or without cause, vastly expanding presidential power over an independent agency that was established to protect consumers in the financial marketplace from unfair, deceptive, or abusive practices in the wake of the 2008 financial crisis.
June 25, 2020: Gorsuch and Kavanaugh joined the majority of the court in ruling that asylum seekers cannot seek judicial review if their asylum claims are denied. This allows the Trump administration to speed up the deportation of asylum seekers who fear persecution in their home country. In dissent, Justice Sotomayor wrote that the ruling “handcuffs the judiciary’s ability to perform its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers.”
June 18, 2020: Gorsuch and Kavanaugh dissented from an opinion by Chief Justice Roberts, in which the Court, 5-4, ruled that the Trump Administration’s attempt to rescind the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious under the Administrative Procedure Act. The majority held that, before deciding to end the program, the Administration should have at least considered the hardships rescission would impose on DACA recipients, their families, and employers; and whether the families and businesses impacted by the decision had legitimately relied on the program’s assurances. If Gorsuch’s and Kavanaugh’s views had succeeded, Trump would have been able to deport 700,000 Dreamers, young undocumented immigrants who came to the U.S. as children.
June 15, 2020: Kavanaugh dissented from a 6-3 decision of the Court holding that an employer who fires, refuses to hire, or otherwise discriminates against an employee for being lesbian, gay, bisexual, transgender, or queer (LGBTQ) engages in sex-based discrimination in violation of Title VII of the Civil Rights Act of 1964. As the majority noted, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Contrary to the plain terms of the statute, however, Kavanaugh would have interpreted Title VII’s prohibition of sex-based discrimination to allow discrimination based on sexual orientation and gender identity. He called the majority opinion “not just a mistake of language and psychology, but also a mistake of history and sociology.” Had Kavanaugh prevailed, millions of LGBTQ people across the country could have been legally discriminated against by their employers.
June 15, 2020: Kavanaugh joined Thomas’s dissent arguing that the Supreme Court should hear a constitutional challenge to New Jersey’s handgun permit requirements. The dissent referred to New Jersey’s law as a “near total prohibition,” and stated that the case was an opportunity for the Supreme Court to “acknowledge that the Second Amendment protects the right to carry in public.” In joining the dissent, Kavanaugh once again made clear his desire to constrain the ability of states and localities to protect its residents from gun violence.
June 15, 2020: Gorsuch joined Alito’s dissent from a ruling that found that Terence Andrus, a death row inmate in Texas, had received ineffective assistance from counsel after his lawyer had failed to review and present an “abundant” amount of mitigating evidence. The omissions included evidence about his mother’s drug addiction and prostitution, his troubled childhood, and his own struggles with addiction and serious mental health issues. The majority wrote that it was “unclear” if the Texas Court of Criminal Appeals (“CCA”) had properly reviewed Andrus’ claim of ineffective counsel in light of this compelling evidence. According to Gorsuch and Alito, however, the CCA had “clearly” decided the issue of prejudice. The dissent also argued that the CCA’s rejection of Andrus’ claim was proper because the mitigating evidence did not create a “substantial likelihood” that “one of the jurors who unanimously agreed on his sentence would not have done so if his trial counsel had presented more mitigation evidence.”
June 1, 2020: In an opinion by Kavanaugh and joined by Gorsuch, the Court, 5-4, held that participants in a defined-benefit retirement plan lacked standing to sue the plan for mismanagement. As a result, James Thole and Sherry Smith, retirees from U.S. Bank, could not sue U.S. Bank for breaching their duties of loyalty and care, which caused the plan to lose more than $748 million. As Justice Sotomayor wrote in dissent, “The Court holds that the Constitution prevents millions of pensioners from enforcing their rights to prudent and loyal management of their retirement trusts. Indeed, the Court determines that pensioners may not bring a federal lawsuit to stop or cure retirement-plan mismanagement until their pensions are on the verge of default. This conclusion conflicts with common sense and longstanding precedent.
June 1, 2020: A dissent written by Kavanaugh and joined by Gorsuch argued in favor of allowing a California church to be exempt from public health restrictions mandated in response to the COVID-19 pandemic. Kavanaugh argued that it was “indisputably clear” that the states requirement that churches be limited to 25% capacity was a violation of the First Amendment because it didn’t apply to “comparable” secular businesses, including “supermarkets,” “retail stores,” “bookstores,” and “cannabis dispensaries.” As the majority explained, the restrictions were justified by “a highly contagious and often fatal disease for which there presently is no known cure,” and “[s]imilar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances[.]”
April 27, 2020: In New York State Rifle & Pistol Assoc. Inc. v. City of New York, the Court, 6-3, dismissed as moot a challenge to a New York City law that severely restricted the transport of firearms outside the home. After the Supreme Court agreed to hear the appeal, the City had repealed the law. Gorsuch, along with Alito and Thomas, would have found the lawsuit not moot, and invalidated the law. Kavanaugh concurred that the suit was moot, but made clear (as he had previously while on the D.C. Circuit) that he is prepared to constrain the ability of states and localities to protect its residents from gun violence.
April 23, 2020: In an opinion written by Kavanaugh and joined by Gorsuch, the Supreme Court issued a decision that makes it easier for the Trump administration to deport permanent legal residents who have committed minor crimes in the U.S. The case involved Andre Martello Barton, a 42-year-old repair shop manager and father of four, who the government detained and sought to deport because he had been convicted for drug possession ten years earlier. Kavanaugh and Gorsuch ruled that he could not apply for cancellation of deportation.
April 23, 2020: Gorsuch dissented from a 6-3 decision of the Court holding that the Clean Water Act’s safeguards against facilities releasing pollutants into bodies of water like rivers, lakes, and oceans also applies to groundwater if the groundwater carries the pollutants to those same locations. Gorsuch would have created a massive loophole that would have permitted dangerous contamination of the nation’s water.
April 6, 2020: On the eve of the Wisconsin primary, Gorsuch and Kavanaugh joined a 5-4 majority to reverse two lower courts that had ruled to extend the deadline for absentee ballot submission in order to allow thousands of people to vote by mail during the COVID-19 pandemic. As a result of the last minute change, thousands of people that had submitted their absentee ballots in reliance on the lower court rulings were disenfranchised, and others were forced to risk their health and safety to go the polls.
March 23, 2020: In an opinion written by Gorsuch and joined by Kavanaugh, the Supreme Court issued a decision weakening Section 1981, enacted after the Civil War in 1866, that prohibits discrimination on the basis of race, color and ethnicity when making and enforcing contracts. Gorsuch’s decision imposes a burdensome pleading standard that will make it more difficult for victims of discrimination to enforce the law.
February 25, 2020: Gorsuch and Kavanaugh joined the 5-4 majority and held that the family of a Mexican teenager playing with friends along the U.S. Mexico border could not pursue claims for damages after a U.S. patrol agent, in violation of instructions controlling his office and situated on the U.S. side of the border, shot and killed the youth on the Mexican side. At the time of the incident, the officer did not know whether the boy he shot was a U. S. national or a citizen of another country.
Gorsuch also joined Thomas’s concurrence and argued that “the time has come to consider discarding” a 1971 decision – Bivens v. Six Unknown Named Agents – that held that injured plaintiffs could pursue claims for damages against U.S. officers for violating the Constitution.
February, 24, 2020: Justice Gorsuch joined Justices Alito and Thomas in calling on the Court to reverse a 1977 decision to require businesses to accommodate religious employees who refuse to perform certain duties because of religious beliefs.
February 21, 2020: Justices Gorsuch and Kavanaugh joined a 5-4 Court majority to allow an immigrant wealth test to go into effect, reversing an injunction put in place by a lower court while litigation proceeded. Justice Sotomayor, joined by Justices Ginsburg, Breyer and Kagan, dissented. Justice Sotomayor argued that cases have repeatedly been rushed to the Court without “being ventilated fully in the lower courts,” and that the Court majority was too often “putting a thumb on the scale in favor” of the federal government.
December 6, 2019: Justices Gorsuch and Kavanaugh joined Alito’s statement arguing that the Trump Administration “has shown that it is very likely to prevail” in its attempt to execute four federal prisoners. While they joined the rest of the Court in denying the DOJ’s attempt to quickly bypass review at the Appeals Court level, they still made clear their belief that the Trump DOJ should win on the merits and ultimately proceed with the execution of these four men.
November 25, 2019: Kavanaugh wrote that Gorsuch’s decision in Gundy v. U.S., “may warrant further consideration in future cases,” signaling his support for reviving the non-delegation doctrine. Reviving the doctrine would deprive Congress of the essential authority to empower agencies to effectively implement and enforce critical statutes that protect everyday Americans, from ensuring financial stability to protecting clean air and water. The doctrine was last used successfully in 1935 by a famously reactionary Court majority bent on invalidating the New Deal.
September 11, 2019: Gorsuch and Kavanaugh joined a majority of the Court to allow nationwide enforcement of a Trump Administration rule that prevents Central American immigrants from seeking asylum in the United States.
June 27, 2019: Contrary to a majority of the Court, Gorsuch and Kavanaugh would have allowed the Trump Administration to proceed with its citizenship question on the Census, justified by what Chief Justice Roberts called a “contrived” reason, that would result in a severe undercount of minorities and deprivation of resources and political representation for many marginalized communities.
June 27, 2019: Gorsuch and Kavanaugh joined the other Republican nominated justices to hold that political gerrymandering cases can never be challenged in federal court, handing a significant victory to Republicans who have manipulated gerrymandering to entrench themselves in power, often contrary to the clear desires of voters, and dilute the vote of Democrats, persons of color and Latinos.
June 21, 2019, Gorsuch and Kavanaugh joined a 5-4 majority of the Court to overturn a 34 year old precedent that had required property owners to go through state courts before taking claims for compensation, challenging land use, zoning and local regulations, to federal court under the Fifth Amendment. Justice Kagan wrote in dissent that “If that is the way the majority means to proceed—relying on one subversion of stare decisis to support another—we may as well not have principles about precedents at all.
June 21, 2019, Gorsuch alone joined Justice Thomas’s dissent from the Court’s decision reversing Curtis Flowers’ conviction and holding that prosecutors improperly excluded African-Americans from the jury. In a combined six trials, Mississippi had used peremptory challenges to strike 41 of the 42 prospective African Americans jurors that it could have struck.
June 20, 2019: Gorsuch, dissenting in a challenge to the Sex Offender Registration and Notification Act, made clear he would reinvigorate the non-delegation doctrine – last used successfully in 1935 by a reactionary Supreme Court majority bent on invalidating the New Deal. Gorsuch would deprive Congress of authority essential to empower agencies to effectively implement and enforce critical statutes that protect the public in countless areas.
June 20, 2019: Gorsuch, in a concurrence to the Court’s decision that a Peace Cross memorial on government land does not violate the Constitution, argued that for public displays of religion, Americans should be prohibited from suing the government to enforce the Establishment Clause of the First Amendment.
May 13, 2019: Gorsuch and Kavanaugh joined a 5-4 majority of the Court holding that states cannot be sued in courts of other states without their consent. In doing so, the Court overturned a 40 year old precedent. Justice Breyer, in his dissent, noted: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”
April 24, 2019: Gorsuch and Kavanaugh joined a 5-4 majority of the court to give businesses more power to force workers and consumers into individual arbitration proceedings, rejecting the ability of 1,300 employees pressing their common claims in arbitration together as a class, even though the arbitration agreement the workers signed did not explicitly ban class actions.
March 29, 2019: Gorsuch was just one of two justices to dissent from an order of the Court staying the execution of a Buddhist prisoner after Texas officials refused to let his Buddhist priest be present in the execution chamber at the moment of his death.
March 27, 2019: Gorsuch dissented from a 6-2 ruling in favor of an SEC enforcement action against investment banker Francis Lorenzo over false and misleading statements Lorenzo disseminated to potential investors in a company. The e-mails Lorenzo sent described the company as having assets of $10 million when Lorenzo knew the real figure was $400,000. Justice Kavanaugh did not participate in the Court’s decision because he had previously ruled against the SEC in the matter when serving on the D.C. Circuit.
March 19, 2019 – Gorsuch and Kavanaugh held that the government could detain immigrants awaiting deportation indefinitely (even for years), after they are released from criminal custody, without a bail hearing.
February 27, 2019 – Gorsuch joined Justice Thomas in urging the Court to reconsider Gideon v. Wainwright, the 1963 ruling that guarantees criminal defendants a lawyer even if they can’t afford it.
February 27, 2019 – Gorsuch dissented when the Court held that an inmate suffering from dementia may not be executed if his disease is so severe that he is unable to understand the reason for his punishment.
February 7, 2019: Neil Gorsuch and Brett Kavanaugh voted to allow Louisiana’s law, identical to the law in Texas declared unconstitutional in Whole Woman’s Health v. Hellerstedt, that would close some of the last three abortion clinics in the state, to go forward. A majority of the court stayed the law pending appeal. Kavanaugh wrote a dissent explaining why the law should be allowed to move forward, “an opinion” one author wrote, that should not be taken as anything less than a declaration of war on Roe v. Wade.”
February 7, 2019: Neil Gorsuch and Brett Kavanaugh voted to allow the execution of a Muslim inmate in Alabama to take place even though the state refused to let an imam be present in the death chamber.
January 22, 2019: Gorsuch and Kavanaugh voted to allow President Trump’s ban on transgender people serving in the military to go into effect while the policy was challenged in court.
December 10, 2018: Neil Gorsuch joined Justices Alito and Thomas in dissenting from the Court’s decision not to hear a lower court case that had invalidated state actions that defunded Planned Parenthood.
October 9, 2018: Neil Gorsuch voted to allow North Dakota to make it harder for Native Americans to vote if they used a PO Box, which is mandated by the US Post Office.
June 27, 2018: Neil Gorsuch, in Janus v. AFSCME, voted to overturn 40 years of precedent in order to weaken labor unions.
June 26, 2018: Neil Gorsuch joined the other conservative Supreme Court justices in striking down California’s disclosure laws for fraudulent “crisis pregnancy centers” as unconstitutional compelled speech. Justice Breyer, in his dissent, pointed out how the decision “radically change[d] prior law.”
June 26, 2018: Neil Gorsuch voted to uphold President Trump’s Muslim Ban.
June 25, 2018: Neil Gorsuch, in Abbott v. Perez, rejected attacks on Texas’s racially discriminatory redistricting. Gorsuch joined Justice Thomas’s concurrence saying that the Voting Rights Act “does not apply to redistricting,” despite numerous cases that hold otherwise. Without briefing or argument, Gorsuch would have gutted the Voting Rights Act’s protections against racial discrimination.
June 11, 2018: Neil Gorsuch joined conservative majority, in Husted v. A. Philip Randolph Institute, to allow Ohio to target infrequent voters for removal from the voter rolls and to deprive them of the fundamental right to vote.
June 4, 2018: Neil Gorsuch ruled against the rights of LGBTQ Americans in Masterpiece Cake Shop, Ltd. v. Colorado Civil Rights Commission.
May 21, 2018: Neil Gorsuch, in Epic Systems v. Lewis, made it harder for victims of wage theft to hold their employer accountable under the National Labor Relations Act.
June 26, 2017: Neil Gorsuch dissented in Paven v. Smith, in which the Court struck down an Arkansas law that treated same-sex couples differently from opposite-sex couples on their children’s birth certificate.
August 5, 2020: Gorsuch and Kavanaugh joined a 5-4 order staying a trial judge’s order that had required the Orange County Jail to take health measures to address a coronavirus outbreak. Justice Sotomayor, dissenting, noted that recently the jail reported 15 new cases in a single week and the jail, which housed more than 3,000 pretrial detainees at the time of the lower court injunction, had witnessed an increase of more than 300 cases in a little over a month. She said local officials “failed to safeguard the health of the inmates in its care.”