Ever since Justice Anthony Kennedy announced his retirement last year, commentators have prophesied that President Donald Trump’s replacement of that moderate jurist would lead to a conservative majority running roughshod over core liberal concerns. That’s why opposition to the milquetoast establishmentarian Brett Kavanaugh was so fierce, even before the 11th-hour sexual-assault allegations,
Over the past several sessions, Supreme Court Justices appointed by Democratic presidents voted in unison more than their Republican counterparts.,
Justice Kavanaugh was supposed to have single-handedly overturned Roe v. Wade, but a funny thing happened on the road to apocalypse. Particularly in petition rejections and other procedural votes, Kavanaugh has demonstrated a pragmatic approach. And a term with few big controversies showed the liberals voting together much more than the conservatives.
Liberal justices vote together at high rates
There were 67 decisions after argument in the term that ended in June. In those cases, the four justices appointed by Democratic presidents voted the same way 51 times, while the five Republican appointees held tight 37 times. And of the 20 cases where the court split 5-4, only seven had the "expected" ideological divide of conservatives over liberals. By the end of the term, each conservative justice had joined the liberals as the deciding vote at least once.
That dynamic isn't something that sprang up in the Trump era or with the court's newest personnel. In the 2014-15 term, with Kennedy at the height of his "swing vote" power — the last full term before Justice Antonin Scalia's death and resulting year-long vacancy — the four liberals stuck together in 55 of 66 cases, while the four conservatives (not counting Kennedy) voted as a unit in 39.
Even in 2013-14, when liberals and conservatives voted with their respective coalitions equally (54 times in 67 cases), 42 of those decisions were unanimous and there were only ten 5-4 rulings. In other words, when conservative justices vote together at the same rate as their liberal counterparts, it's because the entire court is united.
Speaking of politically fraught cases that end up 5-4, it's notable that there's never a question of how the liberal justices will vote. Speculation runs rampant over whether one of the conservatives will go wobbly — whether out of unpredictable moderation, minimalistic pragmatismor idiosyncratic theory — but the liberals are guaranteed to please their constituency.,
Conservatives side with liberal justices
Most famously, of course, in 2012's National Federation of Independent Businessv. Sebelius, Chief Justice John Roberts transmogrified the individual mandate into a tax to save Obamacare. Roberts did a similar thing twice this past term, in cases regarding the census citizenship question (Department of Commerce v. New York) and judicial deference to administrative-agency reinterpretations of their own regulations (Kisor v. Wilkie).
Such intramural fractures often reveal lively intellectual debates that one rarely sees on the left. For example, Justice Neil Gorsuch has joined the liberals five times in 5-4 decisions, four of them this past term alone — with Gorsuch typically writing for the majority or concurring separately without adopting the liberal reasoning. These have mainly been criminal law cases, where Gorsuch's originalism shines through to the benefit of criminal defendants in the same way Scalia's often did — to the surprise of those who weren't paying attention.
Indeed, Gorsuch is rapidly becoming a libertarian darling even as Kavanaugh steers down the middle of the road. Kavanaugh actually aligned himself as much with Justices Stephen Breyer and Elena Kagan as with Gorsuch. The Trump appointees voted the same less often in their first term together than any other two justices appointed by the same president, going back at least to President John F. Kennedy. Meanwhile, Obama appointees Kagan and Sonia Sotomay or were together in all the 5-4 cases this term.
The Ginsburg Four
In sum, if lockstep voting and a results-driven court concern us, it isn't the conservatives we should be worried about. While senators, journalists and academics love decrying the Roberts Five, it's the (Ruth Bader) Ginsburg Four that represent a bloc geared toward progressive policy outcomes. To be sure, a reinvigorated conservative grouping may yet come to dominate the court — especially if Trump fills another seat — but it hasn't happened yet.Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute.
For those who argued that Donald Trump's foreign policy views were dramatically different from those of his predecessors, the skeptics always had a ready answer: John Bolton. Now that Trump has unceremoniously dismissed his hawkish national security adviser, that could pave the way for the change that Trump had promised and that the public anxiously wants.,
Over the course of his presidential campaign, Trump was rewarded for his willingness to challenge the policy elite. He even railed against the Iraq War, initiated by a Republican president, in a Republican debate in South Carolina — and won the primary there. Unlike nearly all of his rivals, Trump correctly sensed that Americans were disinclined to spend vast sums, and risk the lives of American troops, on regime-change wars and costly, open-ended nation-building projects abroad.
In a major foreign policy speech delivered as he was closing in on the GOP nomination, Trump explained that “foolishness and arrogance [had] led to one foreign-policy disaster after another.” And he pledged “to shake the rust off America’s foreign policy” and “invite new voices and new visions into the fold.”,
The next national security adviser will be judged by his or her ability to translate Trump's 'America First' vision into concrete action.,
But, once elected, he did nothing of the sort. Instead, he populated his administration with people committed to maintaining the status quo, including H.R. McMaster as national security adviser, Jim Mattis as secretary of defense, and John Kelly as secretary of homeland security, later White House chief of staff.
To be sure, these establishment figures occasionally steered Trump away from bad — and perhaps even disastrous — decisions. McMaster, Mattis and Kelly, along with Secretary of State Rex Tillerson, delayed, but ultimately couldn’t derail, Trump’s single-minded desire to leave the Iran nuclear deal. Bolton’s most enduring achievement, albeit a dubious one, may be in working with Tillerson’s replacement, Mike Pompeo, to set the United States on a possibly irrevocable path to war with Iran.
The next national security adviser will be judged by his or her ability to translate Trump’s “America First” vision into concrete action. That will involve countless decisions, starting with the appointment of like-minded personnel to staff up the National Security Council, and the removal of Bolton acolytes.
But the immediate policy priority should be extricating the United States from the 18-years-long war in Afghanistan. When Trump set about to fulfill his campaign promise to quit the conflict, he encountered near unanimous opposition from senior national security officials. When he increased the number of U.S. troops on the ground there, he pinned the blame on his advisers.
“We’re there,” he told the Washington Post, “because virtually every expert that I have and speak to [says] if we don’t go there, they’re going to be fighting over here.” Although nearly two thirds (64%) of Iraq and Afghanistan war veterans have decided that the wars were not worth fighting, Trump’s brain trust concluded, erroneously, that there was no alternative.
Bolton, like his predecessor McMaster, appeared to agree with this sentiment. He even tried to thwart Trump's bid to get out of America's longest war by undermining peace talks with the Taliban. He had similarly thrown cold water on the Trump administration's North Korea negotiations. The president deserves a national security adviser willing and able to execute his top policy priorities.
More broadly, however, the next national security adviser can perform an invaluable service by bending U.S. foreign policy to conform with modern realities — including the wishes of the American people. America's ability to police the world, while others watch from the sidelines, was waning long before Donald Trump took up residence at 1600 Pennsylvania Ave. Indeed, we should welcome the fact that the world is now populated by many like-minded actors who are able to defend themselves from harm. The United States should be working diligently to reduce its permanent overseas military presence, stop intervening in the affairs of sovereign states, and shed some of the burdens of being the world's sole superpower, so that it can attend to more urgent problems here at home.Christopher Preble is vice president for defense and foreign policy studies at the Cato Institute, and co-author, with Glaser and Thrall, of “Fuel to the Fire: How Trump Made America’s Broken Foreign Policy Even Worse (and How We Can Recover)”