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The Supreme Court heard arguments as to whether a 10-meter cross commemorating World War I veterans on public land in Maryland was constitutional. (February 27)
AP
WASHINGTON – The conservative Supreme Court rapprochement that had been anticipated following Donald Trump's two presidential elections was stalled by an incipient rapprochement between senior and junior judges.
Chief Justice John Roberts and the newest member of the court, Brett Kavanaugh, voted at the same time on almost all the cases before them since Mr. Kavanaugh joined the court in October. They were more likely to side with the Liberal judges of the court than his other Conservatives.
The two judges, both former members of the same federal district court of the District of Columbia, only split in public once in 25 official decisions. Their partnership has expanded, though less reliably, with the court's orders to fund abortion, immigration and the death penalty in the six months following the bitter battle. Mr. Kavanaugh in the Senate for the confirmation of the Senate by 50 votes to 48.
Roberts and Kavanaugh have obvious reasons for their reluctance to join the other three conservatives of the court in ideological harmony. The Chief Justice expressed concern that the court is considered a mere political arm of the government. Kavanaugh, a former senior White House official headed by President George W. Bush and accused of sexual assault in the 1980s when he was confirmed, may well be falling.
Chief Justice John Roberts took Constitutional oath to Associate Judge Brett Kavanaugh in the Supreme Court Judges' Conference Room in October, under the supervision of Kavanaugh's wife and daughters. (Photo: Fred Schilling, United States Supreme Court Reports)
"Judge Kavanaugh seems to share some of the Chief Justice's institutional concerns, but I think he's also concerned about his own perception as an impartial judge," said Amir Ali, a civil rights lawyer. who obtained a 6-3 decision in February. Roberts and Kavanaugh have joined the four liberal judges to defend the rights of appeal of a criminal accused.
The winger of the chief
The similarities between the two men are striking, despite their decade of age. Roberts, 64, is serious and has a soft voice, but he pointed his questions to both sides in the pleadings. Kavanaugh, 54, is more demonstrative, but he tempers this in a curious and open manner.
Whatever their motives, the Chief Justice and the new judge together provided the ballast for a court in transition. After Kavanaugh's replacement of retired judge Anthony Kennedy, Roberts became the deciding vote of the court and Kavanaugh often seems to be his winger.
Last October, for example, the courts gave citizens who challenged a citizenship question in the 2020 census access to additional information about the plan; his refusal in December to take into account the efforts of the Republican-led states to reduce funding for Planned Parenthood; and his decision in February that Texas can not execute a prisoner who claims to have a developmental disability.
Associate Judges Clarence Thomas and Neil Gorsuch were dissenting in these three actions; Assistant Judge Samuel Alito made his opposition to two of them. Roberts and Kavanaugh appear to have voted with the liberals of the court, although the breakdown has not been made public.
Their differences have been rare but remarkable. In addition to a public vote in a criminal case, Roberts sided with the Liberals to temporarily block the abortion restrictions in Louisiana, while Kavanaugh would have let them come into effect .
And while they refused to hear the efforts of a New Jersey county to include churches in a historic preservation program and the appeal of a coach from the University of New Jersey, the city of New Jersey was not included. a California high school to conduct prayers on the football field, Kavanaugh warned of the need to protect religious freedom.
Kavanaugh v. Gorsuch
Deputy Supreme Court justices Neil Gorsuch and Brett Kavanaugh, who listened to President Donald Trump's State of the Union address in February, have already expressed disagreement in half a dozen cases. this year. (Photo: MANDEL NGAN, AFP / Getty Images)
Kavanaugh, perhaps looking for a low profile, has voted with the majority in almost all cases up to now. Unless he is the author, it usually means signing the opinion. But he often writes separately to explain his vote – a habit he learned at the US Court of Appeals for the District of Columbia Circuit.
More: Brett Kavanaugh, Supreme Court candidate, votes in one direction but sees both sides
"Kavanaugh has always had a more moderate tendency, even on the DC circuit," said Josh Blackman, associate professor at the South Texas College of Law, which closely follows the Supreme Court. "He feels the need to explain, that he is not right."
The Roberts-Kavanaugh bromance contrasts with the obvious differences so far between the two Trump nominees. Although Kavanaugh seems eager to be part of the team – he touted the court's "nine-member team" at his confirmation hearing – Gorsuch often has differing opinions.
The two youngest and youngest judges worked together as legal assistants in the Supreme Court a quarter of a century ago, but they have already been in opposing camps six times in cases dealing with workers' rights, consumer rights, the rights of American Indians, and so on.
More: Basketball, Popeyes, 2 film crews: The year Neil Gorsuch and Brett Kavanaugh worked for Anthony Kennedy
Their discrepancies were visible last month, when Kavanaugh wrote in a 6-3 court decision that naval contractors should warn of asbestos exposure, even if they did not add asbestos to their products. Gorsuch wrote a sharp dissent.
"Maritime law has always recognized a special concern for the welfare of these sailors who engage in dangerous and unpredictable sea voyages," said Kavanaugh summing up his opinion on the bench.
According to Gorsuch's dissent, "a chef at home who buys a butcher's knife can expect to read warnings about the dangers of knives, but not about those of undercooked meat".
Kavanaugh and Roberts agreed with the court's Liberals that a criminal accused had been abused when his attorney had not appealed the conviction, even though the accused had waived his right to appeal. Gorsuch joined the dissent of Thomas, who went so far as to ask if the Constitution requires taxpayer-funded lawyers for those who can not afford it.
"You can not imagine greater reform of the criminal justice system," said Ali, whose client had won.
"Judge Kavanaugh did not choose the court to rewrite all areas of law," Ali said. "Judge Gorsuch's philosophy, however, led him to advocate for capital change."
Left-right divides the exception
The former California governor, Arnold Schwarzenegger, will appear before the Supreme Court in March as judges hear arguments on the geringmandering of supporters, the practice of political parties to create congressional districts that profit unjustly to a party. (Photo: Carolyn Kaster, AP)
It is still relatively early in the legal process, with more than half of the cases still to be decided, so that the trend lines of the judges might not last until June.
The next mandate, which will begin in October, could include major issues on abortion and immigration, gay rights and gun control, as well as the third court debate on Obamacare. And for the 50 and 60 year old judges appointed for life, it will take several years or even decades to evolve or remain firm.
After the first six months of Kavanaugh, it is clear that traditional left-right splits are more the exception than the rule.
The court divided five or four people according to ideological criteria, only twice in the substantive cases, relating to the detention of non-citizens with a criminal record and the execution of prisoners with rare diseases. The same alignment also allowed the partial ban imposed by the administration on transgender troops to take effect while the protests continue and denied the demand for a Muslim prisoner to summon his imam in the execution room.
For the moment, Kavanaugh and Roberts "are acting cautiously," said Lisa Blatt, who pleaded more in the Supreme Court than any other woman and was a trial witness in the confirmation process.
When the subject turns to abortion, guns, race or religion, Blatt says, "So call me, it's there that they throw a marker."
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