After Supreme Court Justice Brett Kavanaughseemed to upset the court’s partisan balance by voting with the court’s liberal bloc of justices in last week’s Apple v. Pepper decision, Monday’s opinions from the high court showed that its conservative justices are not as like-minded as previously billed or assumed. The proof? President Donald Trump’s two appointments to the bench, Kavanaugh and Justice Neil Gorsuch, disagreed on three separate decisions in one day.
Each case dealt with a different area of law, and each sparked disagreement between the most recently minted SCOTUS justices.
Herrera v. Wyoming
Gorsuch joined a 5-4 decision penned by Justice Sonia Sotomayor, in which the court’s liberal bloc found that a treaty entered into by the Crow Tribe regarding hunting rights on land in present-day Wyoming and Montana remained in effect — despite Wyoming’s subsequent statehood. The court held that Wyoming’s statehood did not abrogate the Native American tribe’s 1868 right granted by federal treaty to hunt on the “unoccupied lands of the United States.”
Mission Product Holdings v. Tempnology LLC
Justice Gorsuch was the lone dissenter in an 8-1 opinion penned by Justice Elena Kagan. The opinion held that a rejection of an executory contract by a bankruptcy debtor is effectually the same as a breach of that contract outside bankruptcy, and therefore cannot rescind the rights and obligations previously granted by the contract.
Merck Sharp & Dohme Corp. v. Albrecht
In this case, the two conservative justices we now discuss ultimately reached the same judgment, but with marked differences in their rationales. Justice Stephen Breyer wrote the court’s opinion, joined by Gorsuch, Justice Clarence Thomas, and the court’s remaining three liberals. Kavanaugh, on the other hand, joined a concurring opinion by Justice Alito and Chief Justice John Roberts.