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.
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.