President Donald Trump has shifted the federal judiciary toward the conservative side in historic fashion since taking office. But his two most high-profile judicial nominees, Supreme Court Justices Neil Gorsuch and Brett Kavanaugh, bucked the conservative majority at times during their first term together on the high court. According to a Daily Caller analysis, Gorsuch sided with the court's four liberals in 5-4 decisions on four cases, and Kavanaugh did it in one case. In fact, each of the court's five conservative justices crossed over to join the four liberals on at least one occasion during the last term.
Some of the president's supporters and conservative analysts may be troubled by that trend, but other legal experts see it as a positive for independent jurisprudence. "It's a good thing...I mean, if this thing is simply that everybody knows before a case who is going to win, then something is wrong with the system," says Gerald Treece, professor at South Texas College of Law Houston. "(Gorsuch and Kavanaugh) showed great independence and scholarship, and that's what I expected...it's an insult to think that a judge, before he gets on the bench, is going to vote a certain way."
Treece also notes that the cases in which Gorsuch and Kavanaugh crossed over were mostly obscure, dealing with things like interpreting old criminal statutes or antitrust laws. "Let's just wait and see what they do on the issue that will define what President Trump has promised---someone who will overturn Roe Versus Wade," says Treece. "The question of when fetal life begins, can states prohibit the taking of a fetal life...these questions are working their way toward the court now."
Despite their occasional independence, Gorsuch and Kavanaugh still sided with the conservatives on the court in most of their cases, and all five conservative justices held together for a majority decision on a total of seven cases during the last term.