SCOTUS DOGE: The Wall of Receipts for President Trump’s Three Appointees

Republicans have a problem. Since the Nixon Administration, Republican Presidents have appointed sixteen out of twenty-one Supreme Court justices. But only about a third of those sixteen nominees have been principled conservative jurists. The rest either were not very conservative in the first place or simply drifted to the left. Perhaps the most confounding selection has been Chief Justice John Roberts. In his never-ending pursuit to depoliticize the judiciary, Roberts renders these faux-Solomonic decisions based on his own sense of political compromise. His decision to save the Affordable Care Act by rewriting the law’s individual mandate and Medicaid expansion was just the tip of the iceberg.

These problems with Republican appointed judges are well known, and have been the source of massive frustration on the right. Ironically enough, the current Court’s two most conservative members were flukes. Justice Samuel Alito was only picked after the nomination of Harriet Miers (thankfully) flamed out. And I am confident that President George H.W. Bush would have never selected Clarence Thomas had he known how conservative the jurist would be.

President Trump was gifted a golden opportunity in his first term with three Supreme Court nominees. As Trump’s second term begins, with potential vacancies on the horizon, it is not too early to assess the three nominees. But how best to measure their performance? One possible benchmark is whether they built a conservative majority on the Court. On that front, they unquestionably succeeded. Justice Antonin Scalia, the conservative lion, was replaced by another conservative, Justice Neil Gorsuch. Justice Anthony Kennedy, who swung from left to right in any given case, was replaced by a more-reliable conservative in Justice Brett Kavanaugh. And Justice Ruth Bader Ginsburg, the leader of the Court’s progressive wing, was replaced by Amy Coney Barrett, who briefly served on the court of appeals after a career in academia. These three jurists have cast votes in landmark cases that have unquestionably shifted the law to the right: they voted to overrule Roe v. Wade, abandoned the dreaded Lemon test, nixed most affirmative action policies, and more.

If we limit our focus to these high-level cases, the Trump trio are resounding successes. But we can look deeper. In my view, the relevant metric is not whether they have made the Court more conservative, but how they compare to the Court’s most conservative appointees: are they voting with Justices Thomas and Alito, or drifting towards Chief Justice Roberts? I documented their records meticulously in a 2024 article, and have carefully tracked recent developments. On this front, the Trump appointees can be easily ranked. First, Justice Gorsuch is the member most likely to join Thomas and Alito, though he has led the liberals on significant cases concerning LGBT rights and Indian tribes. Second Justice Brett Kavanaugh started off a bit rocky, and was more likely to vote with Chief Justice Roberts, though more recently, he has settled down to preserve certain legal principles. Third, Justice Barrett has been the biggest wildcard. From her earliest days, she has consistently voted opposite Thomas, Alito, and Gorsuch with regard to emergency applications and denials of certiorari. More recently, Justice Barrett has been trending towards Chief Justice Roberts’s mode of alternative dispute resolution.

You don’t have to take my word for it. In the spirit of DOGE, here is the wall of receipts.

Rulings on the Emergency Docket

On the Supreme Court’s emergency docket, it takes five votes to reverse a lower court’s ruling. I have counted more than a dozen cases in which Justices Thomas, Alito, and Gorsuch would have granted relief on the emergency docket, while Justice Barrett and, in some cases, Justice Kavanaugh, voted in the opposite fashion. Almost all of these votes came in high-profile cases that may be viewed as controversial. I’ve described this dynamic as the 3-3-3 Court on the Court’s emergency docket.

The common thread in each case is that Justices Thomas, Alito, and Gorsuch were willing to grant emergency relief to a conservative litigant challenging a progressive policy in a high-profile case. It would be a mistake to say that this trio is voting for the conservative causes because they are conservative justices. Rather, conservative litigants are more likely to make conservative legal arguments which are more appealing to conservative judges. Judicial philosophies matter. But in each high-profile case, which may be deemed controversial, one or two of the other Trump appointees were silent. And their silence is a pretty good indication they voted opposite of the conservative wing of the Court.

1. South Bay United Pentecostal Church v. Newsom (2021) – Justices Thomas, Alito, and Gorsuch would have declared unconstitutional a ban on singing in church. Justice Barrett’s first concurrence on the bench, which Justice Kavanaugh joined, upheld the singing ban.
2. We The Patriots USA v. Hochul (2021) – Justices Thomas, Alito, and Gorsuch would have blocked the enforcement of a state vaccine mandate. Justices Kavanaugh and Barrett were silent.
3. Dr. A. v. Hochul (2021) – Justices Thomas, Alito, and Gorsuch would have blocked the enforcement of a state vaccine mandate. Justices Kavanaugh and Barrett were silent.
4. Dunn v. Austin (2022) – Justices Thomas, Alito, and Gorsuch would have blocked the enforcement of a federal vaccine mandate. Justices Kavanaugh and  Barrett were silent.
5. Austin v. U.S. Navy Seals 1-26 (2022) – Justice Thomas, Alito, and Gorsuch would have ruled in favor of Navy Seals challenging a vaccine mandate. Justice Kavanaugh, and likely Justice Barrett, declined to grant relief.  
6. Coalition for TJ v. Fairfax County School Board (2022) – Justices Thomas and Alito would have blocked an affirmative action policy at an elite public high school. Justices Gorsuch, Kavanaugh, and Barrett were silent.
7. Moore v. Harper (2022) – Justices Thomas, Alito, and Gorsuch would have blocked a state supreme court’s finding of a partisan gerrymander. Justice Kavanaugh, and likely Justice Barrett, declined to grant relief.
8. NetChoice v. Paxton (2022) – Justices Thomas, Alito, and Gorsuch would have allowed a Texas regulation of social media companies to go into effect. Justices Kavanaugh and Barrett voted to allow the Texas law to be blocked.
9. Ritter v. Migliori (2022) – Justices Alito, Thomas, and Gorsuch would have blocked the counting of undated mail-in ballots. Justices Kavanaugh and Barrett were silent.
10. Murthy v. Missouri (2023) – Justices Thomas, Alito, and Gorsuch would have allowed a lower court to block the Biden Administration from “jawboning” social media companies. Justices Kavanaugh and Barrett likely voted to put that lower court ruling on hold.
11. Griffin v. HM Florida-ORL (2023) – Justices Thomas, Alito, and Gorsuch would have allowed a Florida law to be enforced that prohibited restaurants from showing “adult live performances” to children. Justices Kavanaugh and Barrett allowed a lower court to block the law. 
12. Garland v. Vanderstok (2023) – Justices Thomas, Alito, Gorsuch, and Kavanaugh would have blocked enforcement of a “ghost gun” regulation. Justice Barrett allowed the restriction to go into effect. (I am co-counsel in that case.)
13. Moyle v. United St

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