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06/27/2017

The Thomas-Gorsuch Alignment (Updated)
Michael Ramsey

Yesterday's array of results from the Supreme Court continues, among other things, the trend I noted here (and which the AP noted a couple of days later [via Powerline's post Is Neil Gorsuch the Next Justice Thomas?]):  the alignment of Justice Thomas and Justice Gorsuch.  Consider:

Trump v. International Refugee Assistance Project [travel ban case]: Justice Gorsuch joins Justice Thomas' concurrence/dissent (also joined by Justice Alito).

Trinity Lutheran Church of Columbia, Inc. v. Comer [free exercise case]: Gorsuch joins Thomas' concurrence; Thomas joins Gorsuch's concurrence.  (Both join the majority except for footnote 3).

Davila v. Davis: Gorsuch joins Thomas' majority opinion (also joined by Chief Justice Roberts, Justice Kennedy and Justice Alito).

California Public Employees' Retirement System v. ANZ Securities, Inc.: Thomas and Gorsuch join Kennedy's majority opinion (also joined by Roberts and Alito).

Pavan v. Smith: Thomas joins Gorsuch's dissent (also joined by Alito).

Johnson v. Alabama: Thomas and Gorsuch (and Alito) join Roberts' dissenting opinion.

Peruta v. California [Second Amendment case]: Gorsuch joins Thomas' dissent from denial of certiorari.

Bay Point Properties v. Mississippi Transportation Commission [takings case]: Thomas joins Gorsuch's dissent from denial of certiorari.

That's eight cases from one day (all contentious ones); in three of them no other Justices joined the Gorsuch/Thomas opinions.  Plus one assumes that Gorsuch and Thomas were two of the votes for certiorari in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission [the gay wedding cake case].  The cases share a textualist/originalist/rule of law outlook with a generally conservative political orientation.  It's an easy prediction that Justice Scalia would have agreed.

Actually it's easier to list the cases in which Thomas and Gorsuch did not agree:

Mathis v. Shulkin:  Gorsuch dissented from denial of certiorari alone.

Hicks v. United States: Gorsuch concurred with the majority disposition [remand in case in which the respondent admitted error]; Thomas joined Roberts in dissenting.

It remains a small and early sample, but taken with the four cases discussed in the AP article linked above, it's hard not to see a trend.  At minimum, Justice Gorsuch must have substantial respect and admiration for Justice Thomas' approach to law.

UPDATE:  Richard Hasen (UCI) has some similar thoughts here: Gorsuch is the new Scalia, just as Trump promised.