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The Kagan-Gorsuch Axis and Kavanaugh v. Gorsuch—Chapter III

The Supreme Court issued four more opinions this morning as it nears the end of the term. There were no blockbusters, but there were some interesting lineups,, including a startling degree of agreement between Justices Gorsuch and Kagan.

First up was United States v. Davis, a constitutional challenge to a federal statute providing for heightened sentences for the commission of certain “crimes of violence” while using or possessing a firearm. Justice Gorsuch wrote for a five-justice majority, holding that the statute was unconstitutionally vague. He was joined by Justices Ginsburg, Breyer, Kagan and Sotomayor. This opinion, like his dissents in Gundy and Gamble last week, provides further evidence that Justice Gorsuch’s jurisprudence is more favorable to criminal defendants than a Justice Garland’s would have been.

The dissent in Davis was written by none other than Justice Kavanaugh, producing another split between the Court’s newest justices. Justices Gorsuch and Kavanaugh may both be conservatives, and they were both appointed by President Trump, but they are not clones of each other, as I noted here and here. Among other things, Kavanaugh does not seem to have the same formalist streak that leads Gorsuch to cross over in some criminal law cases, as Justice Scalia would sometimes do.

Another fun tidbit in Davis is that Justice Kavanaugh’s dissent was joined in full by Justices Alito and Thomas, and by the Chief Justice for all but part III-C. What was in Part III-C you might ask? A discussion of the canon of constitutional avoidance, and why it counseled upholding the constitutionality of the statute here. Although the Chief Justice has deployed this canon quite aggressively in the past—think NAMUDNOBond, and (of course) NFIB—for some reason he found it objectionable here.

Next up was Food Marketing Institute v. Argus Leader Media, a dispute over standing to appeal a decision ordering the disclosure of allegedly private information under the Freedom of Information Act. Justice Gorsuch wrote for the six-justice majority, joined by the Court’s other conservatives and Justice Kagan. Justice Breyer concurred in part and dissented in part, joined by Justices Ginsburg and Sotomayor.

Justices Kagan and Gorsuch were aligned again in Iancu v. Brunetti, in which the Court held that the Lanham Act’s prohibition on registration of “immoral[ ] or scandalous” trademarks violates the First Amendment. Justice Kagan wrote the opinion for the Court, joined by Justices Ginsburg, Alito, Kavanaugh and Gorsuch. Jsutice Alito wrote a separate concurrence, while the remaining justices (Roberts, Breyer, and Sotomayor) each wrote an opinion concurring in part and dissenting in part.

Justices Kagan and Gorsuch agreed in today’s fourth and final decision as well. In Dutra Group v. Batterton, Justice Kagan and the Court’s conservatives joined Justice Alito’s opinion for the Court holding that a plaintiff may not recover punitive damages on a claim of unseaworthiness. This was the second decision today in which Justice Kagan joined the Court’s conservatives in a 6-3 split. Justice Ginsburg dissented, joined by Justices Breyer and Sotomayor.

While Justices Kagan and Gorsuch agreed across-the-board today, there was no such consensus among Justices Roberts, Alito and Breyer. Whereas the Chief Justice and Justice Breyer agreed in three of four cases decided each of last week’s three decision days, they did not join any of the same opinions today. Even where they agreed on the proper result, they adopted or embraced separate rationales.

While today’s voting alignments are interesting, they are unlikely to augur what has yet to come this term. Do not be surprised if there is little agreement between Gorsuch and Kagan or Roberts and Breyer in the Court’s remaining cases. We will get more opinions on Wednesday, and some of the term’s most difficult cases remain, several of which are likely to produce 5-4 splits along traditional right-left lines.

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About The Author

Jonathan H. Adler

Founded in 1968, Reason is the magazine of free minds and free markets. We produce hard-hitting independent journalism on civil liberties, politics, technology, culture, policy, and commerce. Reason exists outside of the left/right echo chamber. Our goal is to deliver fresh, unbiased information and insights to our readers, viewers, and listeners every day. Visit

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