President Donald Trump has had a tremendous ability to shape the future of the Supreme Court with two picks already confirmed in his first years in office, but the unexpected alignment between Trump’s latest pick, Brett Kavanaugh, and John Roberts, chief justice and longtime swing vote, is creating unexpected results from the bench, USA Today reports.
In what USA Today describes as a “bromance,” Kavanaugh and Roberts have been all but lockstep in their respective votes on cases to-date. The pair have diverged in their votes just once in the 25 official decisions which have been handed down since Kavanaugh joined the court.
Frustrating conservatives, many of those votes have swung court decisions to the left. While political and legal analysis have long come to expect Roberts to cast difficult-to-predict votes — sometimes siding with the court’s conservative justices and sometimes with its liberal wing — it was largely expected that Kavanaugh would be reliably right of center. Many speculated that Trump and Republicans were so willing to go through Kavanaugh’s hard-fought confirmation hearing specifically because he would be a reliable conservative ally on the court, and vote accordingly. Kavanaugh’s appointment dominated headlines for weeks under a cloud of decades-old sexual assault allegations, which cost conservatives substantial political capital as they navigated the controversy to get Trump’s pick over the finish line.
As the confirmation dragged on, some right-leaning pundits began to question whether the nominee was worth the effort and the controversy. Some have since spoken up in light of Kavanaugh’s growing record of real-world court decisions. Mark Levin, a lawyer and conservative radio personality, took to Twitter on Sunday to recall his past concerns and share the USA Today article.
You’ll recall this was my concern ... https://t.co/t3qYlUsjQy— Mark R. Levin (@marklevinshow) April 7, 2019
One driving factor in Kavanaugh’s tendency to stray from conservative expectations, in addition to the facts of individual cases, could be his desire to avoid the appearance that he is merely an ideological partisan rather than a justice with an open mind — a reputation that Roberts enjoys in many circles. Roberts has also echoed this sentiment, indicating that he wanted to make sure that the Supreme Court maintains its integrity as a non-partisan branch of government rather than become the judicial arm of those in political power.
“Justice Kavanaugh seems to share some of the chief justice’s institutional concerns, but I think he also cares about his own perception as an even-handed judge,” said Amir Ali, a civil rights lawyer who recently appeared before the Court. Ali benefited from Roberts and Kavanaugh voting in line with the four liberal justices.