Supreme Court class photo 2017

List of Purely Partisan 5-4 Supreme Court Cases, Early Neil Gorsuch Years

In 2016, a vacant Supreme Court seat was held open to deny Democrats from appointing a majority of Justices on the Court after decades of Republican control. More than a year later, Neil Gorsuch gained the empty seat.

In the next three years, the Supreme Court decided 41 cases by a 5-4 margin with all the Republican appointees and Neil Gorsuch on one side, and the four Democrats on the other. These are called purely partisan cases.

If Republicans did not break the Constitution and precedent to hold that seat open, all or most of these 41 purely partisan cases would have come out the other way. In other words, these 41 actual cases demonstrate 41 real world examples to answer the question why Republicans held that seat open. They held it open to produce results like these–results that affect every aspect of our lives: restricting voting rights, forcing us out into the pandemic, making it harder to sue, protecting Donald Trump, and so much more.

This report lists all 41 cases, first in a quick summary, than in a list with each case in chronological order including a short explanation and links to more details.

SUMMARY OF 5-4 CASES WITH NEIL GORSUCH DECIDING VOTE

Here is the summary of the list of purely partisan 5-4 Supreme Court cases in the early Neil Gorsuch Years. Click on the numbers for more detail:

Since Neil Gorsuch filled that seat in 2017, the Court has issued 41 purely partisan 5-4 or 5-3 opinions where Neil Gorsuch cast a deciding vote. Purely partisan means all five Republican appointees one side and all Democratic appointees are on the other. Here is the summary list:

  • Executions — less due process (1, 3, 26, 36, 37), pain permitted (17 and 18),
  • Voter suppression — mass purging (7), gerrymandering (10 and 22), pandemic related (29, 35, 40, 41),
  • Immigration and non-citizens — no bail hearing (5), ‘Muslim ban’ (13), public charge rule (24 and 25), deportation (16 and 30),
  • Free speech — banks may hide increasing fee rates (11), state can’t require a wall sign offering free health care (12), union dues rule overturned (14), no government funding unless official line adopted (32),
  • Workers’ rights — no opt out of class action settlement (2), workers cannot join together against a company (19),
  • permitting Donald Trump to spend billions on border wall (23 and 38),
  • denying clergy for death row Muslim (15),
  • allowing Donald Trump to hide official documents from court (4),
  • denying double jeopardy protection for related trials (9),
  • blocking state from lifting its own sovereign immunity (20),
  • federalizing eminent domain law against prior rulings (21),
  • allowing state prosecution based on federal forms (28),
  • converting head of CFPB to pure political appointee (33),
  • permitting unsafe pandemic conditions at prisons (39),
  • mandating a state to fund religious schools (34),
  • money managers not liable for losing quarter billion dollars (31),
  • agent not liable for killing innocent child across the border (27),
  • railroad workers not taxed on income (8),

DETAILS OF 5-4 CASES WITH NEIL GORSUCH DECIDING VOTE

Here are some details of the list of 41 purely partisan 5-4 Supreme Court cases in the early Neil Gorsuch Years. They are in chronological order. Each case includes links to more detailed articles and official Supreme Court opinions.

Supreme Court class photo 2017

2017 SUPREME COURT TERM

Neil Gorsuch was confirmed to the Supreme Court just before the beginning of the term. Over his first year, a stunning fourteen cases came out purely partisan.

1. FLURRY OF EXECUTIONS CAN GO FORWARD
In the first purely partisan case with Neil Gorsuch participating, a 5-4 Supreme Court let a flurry of eight state executions in Arkansas go forward for a bunch of old convicts apparently because “the ‘use by’ date of the State’s execution drug is about to expire,” according to Stephen Breyer in his dissent.
April 20, 2017. McGehee v. Hutchinson. (No main written opinion.)

2. NO SETTLEMENT REVIEW FOR CLASS MEMBERS
Investors filed a class action against Lehman Brothers for “material misstatements.” California’s pension system was a member of the class. A settlement was reached and California did not like it, so the state opted out and filed a separate action.
A 5-4 Supreme Court said California could not file such a claim as the time limit in the “statute of repose” expired before the settlement was reached. A class member’s right to sue ends before the member gets to accept or reject a settlement.
June 26, 2017. California Public Employees Retirement System v. ANZ Securities. (Kennedy.)

3. NO RIGHT TO ATTORNEY ON APPEAL
A convicted man was sentenced to death after killing two people. He changed attorneys and appealed the judgment. The new attorney forgot to argue a preserved objection and the convict lost the appeal. A different attorney filed a habeas corpus action, complaining of “ineffective assistance of counsel.”
A 5-4 Supreme Court denied the action with this sweeping statement: “a prisoner does not have a constitutional right to counsel in state postconviction proceedings.”
June 26, 2017. Davila v. Davis. (Thomas.)

4. GOVERNMENT MAY HIDE OFFICIAL DOCUMENTS FROM COURT
The Donald Trump administration cancelled DACA (Deferred Action for Childhood Arrivals) without following required administrative procedures. A lower court ordered the government to turn over related official documents.
An emergency order by a 5-4 Supreme Court overturned the order, letting the government withhold the documents. Dissenting Stephen Breyer said, “judicial review cannot function if the agency is permitted to decide unilaterally what documents it submits to the reviewing court.” In a later case, the DACA program survived 5-4.
December 20, 2017. In re United States. (No main written opinion.)

5. NON-CITIZENS REMAIN DETAINED AS COURT DELAYS BAIL HEARINGS
Non-citizens held in custody filed a class action to obtain bail hearings. Some wanted asylum, some were held over beyond criminal sentences, and some for other reasons. Lower courts determined that immigration law gave them the right to such hearings.
A 5-4 Supreme Court overturned lower courts. First, the Court said that the law in question clearly did not require bail hearings, ordering the lower court to consider Fifth Amendment Constitutional due process instead. Second, the Court questioned whether this claim can be held as a class action or whether detainees should each go to court separately, ordering the lower court to review class action standards. Thousands remain in indefinite detention as litigation continues.
February 27, 2018. Jennings v. Rodriguez. 5-3. (Alito.)

6. WORKERS FORCED INTO PRIVATIZED INDIVIDUAL ARBITRATION
A 5-4 Supreme Court opinion forced American workers to take their claims each individually to privatized arbitration even where employers commit large-scale torts against many workers contradicting the National Labor Relations Act which guarantees employees a right to “concerted activity” and “mutual aid” — the opposite of a 1953 ruling that did not allow arbitration to override breaking a different federal law. The Neil Gorsuch opinion invoked a “federal policy” to reach this conclusion, then complained that dissenters were the ones doing “policy.”
The House of Representatives passed a bill to reverse this ruling, but it stalled in the Senate.
May 21, 2018. Epic Systems v. Lewis. (Gorsuch.)

7. ELECTION LAW MISINTERPRETED TO MAXIMIZE VOTER PURGES
A 5-4 Supreme Court took the 1993 National Voter Registration Act which was designed to reduce purging of people who skip elections and misinterpreted the law to maximize purges. This year, some 17,000,000 Americans have lost their right to vote as a result.
June 11, 2018. Husted v. A. Philip Randolph Institute. (Alito.)

8. RAILROAD STOCK OPTIONS EXEMPT FROM INCOME TAX
Railroads used to compensate workers with “in-kind” benefits of “food, lodging, railroad tickets, and the like.” Such benefits were exempt from income tax under the Railroad Retirement Tax Act because they were not “money remuneration.” Now railroads pay workers in stock options, which are readily convertible to cash. About half of workers convert the options to cash regularly. A 5-4 Supreme Court permitted the tax loophole to continue.
June 21, 2018. Wisconsin Central Ltd. v. United States. (Gorsuch.)

9. SEPARATE FIREARMS TRIAL DOES NOT VIOLATE DOUBLE JEOPARDY
Michael Currier was charged with larceny and firearm possession after another suspect fingered him. Larceny and firearm charge trials were split. Currier was acquitted on larceny. He claimed a second trial on firearms violated double jeopardy.
A 5-4 Supreme Court determined that Currier could be tried twice out of the same events because he consented to splitting trials.
June 22, 2018. Currier v. Virginia. (Gorsuch.)

10. RUSHED APPEAL ENDS DISPUTE TO UPHOLD GERRYMANDERING
A 5-4 Supreme Court took a Texas gerrymandering case even though the lower court had not finished ruling yet, rushing an opinion that permitted most of the gerrymandering to continue in time for the 2018 midterm elections.
June 25, 2018. Abbott v. Perez. (Alito.)

11. BANK TRANSACTION FEES KEPT SECRET FROM CUSTOMERS
American Express ordered merchants to keep its transaction fee rates hidden from customers, then raised fees twenty times causing inflation in the bank fee market. A 5-4 Court essentially invented new Economics to avoid anti-trust considerations, and let the secret fees stand.
June 25, 2018. Ohio v. American Express. (Thomas.)

12. QUIET WALL SIGN MANDATE VIOLATES FREE SPEECH
California ordered “crisis clinics” to hang a wall sign informing clients that the state offers free and full health care services including abortion. Since the clinics were ideological anti-abortion fronts, they objected. A 5-4 Supreme Court compared the notice requirement to Nazis and communists and ordered them unconstitutional under ‘free speech.’
June 26, 2018. National Institute of Family and Life Advocates v. Becerra. (Thomas.)

13. DONALD TRUMP’S MUSLIM BAN UPHELD
A 5-4 Supreme Court upheld an executive proclamation commonly referred to as the “Muslim ban.” Even though Donald Trump stated his intent to discriminate against Muslims, he shuffled the details around to make the ban appear more “politically correct” — his own words. And the Court bought it.
June 26, 2018. Trump v. Hawaii. (Roberts.)

14. UNIONS NO LONGER ALLOWED TO COLLECT DUES
Unions are created by democratic elections. For more than forty years, once a majority voted in a union and its leadership, the relevant population had to pay “agency fees” — dues necessary to run the union. A 5-4 Supreme Court reversed the old rule.
June 27, 2018. Janus v. State, County, and Municipal Employees. (Alito.)

2018 SUPREME COURT TERM

Brett Kavanaugh was confirmed as a Justice near the beginning of the 2018 term. There were nine purely partisan cases throughout the year.

15. NO RELIGIOUS RIGHTS FOR MUSLIM AT EXECUTION
A 5-4 Supreme Court summary order permitted an execution to go forward of a Muslim man who wanted an imam present at the execution, despite a lower court planning to hear his religious claim. The prison gives Christians such rights.
February 7, 2019. Dunn v. Ray. (No main written opinion.)

16. IMMIGRANTS PICKED UP YEARS AFTER CRIMINAL RELEASE
Under the law, the federal government may take non-citizens into “mandatory custody” to consider removing them from the United States after those immigrants are released from state jail. Federal government was picking up people years after release and denying bail hearings. A 5-4 Supreme Court permitted the practice.
March 19, 2019. Nielsen v. Preap. (Alito.)

17. RISK OF PAINFUL DEATH PENALTY ACCEPTABLE
A convict on death row in Missouri complained that lethal injection would be particularly painful for him due to a condition that could cause hemorrhaging and choking. A 5-4 Supreme Court found “the Eighth Amendment does not guarantee a prisoner a painless death” as long as there is not “superaddition of terror, pain, or disgrace.” As it turned out, after extra precautions, the execution seemed fairly normal.
April 1, 2019. Bucklew v. Precythe. (Gorsuch.)

18. RUSH TO DEATH PENALTY DESPITE PAIN RISK
A convict on death row in Alabama wanted to avoid painful execution using nitrogen hypoxia rather than lethal injection as a report said it was “painless, peaceful, and unlikely to cause any substantial physical discomfort.” Both methods were available. Lower courts stopped the execution to consider the matter. A 5-4 Supreme Court in the “middle of the night” overruled lower courts without comment and the man was executed. (Quoting dissent, internal quotations omitted.)
Three orders: April 12, 2019, May 13, 2019, and May 30, 2019. Price v. Dunn. (No main written opinion.)

19. MORE WORKERS FORCED INTO INDIVIDUAL ARBITRATION
A hacker stole personal information of 1300 workers from the employer. Frank Varela was harmed. The contract said “any and all disputes … be resolved by” arbitration, but said nothing about class arbitration. State contract law says that ambiguity in contracts be interpreted against the drafter. In this case, lower courts found that silence on class arbitration permitted the class action.
A 5-4 Supreme Court overturned lower courts and state contract law, forcing each worker into individual arbitration actions.
April 24, 2019. Lamps Plus v. Varela. (Roberts.)

20. NO SUING A NEIGHBOR STATE EVEN IF THE STATE DOESN’T MIND
Overtly overruling an earlier case, the 5-4 Supreme Court took away state power to permit out-of-state Americans to sue them.
In his dissent, Stephen Breyer warned: “The majority has surrendered to the temptation to overrule Hall [the earlier case] even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next.”
May 13, 2019. Franchise Tax Board of California v. Hyatt. (Thomas.)

21. OLD EMINENT DOMAIN RULE DISREGARDED
Overruling solid precedents going back to the 1800s and overturning lower courts in this case, the 5-4 Supreme Court rewrote the Takings Clause of the Constitution. In the past, those dissatisfied with “just compensation” would go though state procedures to decide the issue. Federal action would only apply after payment was not just and prompt.
From now on, the moment a taking occurs, the property owner can go into federal court if payment is not in hand.
June 21, 2019. Knick v. Township of Scott. (Roberts.)

22. EXTREME PARTISAN GERRYMANDERING PERMANENTLY ALLOWED
The 5-4 Supreme Court says the Constitution allows politicians to gerrymander districts so totally as to practically guarantee their own seats and to permit the party who receives fewer votes to gain the majority of seats.
June 27, 2019. Rucho v. Common Cause. (Roberts.)

23. DONALD TRUMP MAY TAKE BILLIONS FOR THE WALL
A 5-4 Supreme Court temporary order permitted Donald Trump to spend 2.5 billion dollars more on the Mexican border wall than Congress permitted while the case was ongoing, overturning a permanent injunction by a lower court.
July 26, 2019. Trump v. Sierra Club. (No main written opinion.)

2019 SUPREME COURT TERM

After a relatively mild number of nine purely partisan decisions in 2018, the five Republicans on the Court came back in the 2019 term with a whopping sixteen partisan decisions.

24. NEW PUBLIC CHARGE RULE TEMPORARILY REINSTATED, PART 1
The 5-4 Supreme Court temporary order permitted the government to continue a harsh new “public charge” rule that would deny “green cards” to immigrants who might use social services or who fall below minimum income requirements while the case was ongoing. This order overturned a lower court.
The case was later dismissed as the new administration effectively reversed the public charge rule.
January 27, 2020. Department of Homeland Security v. New York. (No main written opinion.)

25. NEW PUBLIC CHARGE RULE TEMPORARILY REINSTATED, PART 2
In another case, the 5-4 Supreme Court order permitted the government to continue the public charge rule while litigation is pending again. Sonia Sotomayor, described a pattern in her dissent:
“Today’s decision follows a now-familiar pattern. The Government seeks emergency relief from this Court, asking it to grant a stay where two lower courts have not. The Government insists–even though review in a court of appeals is imminent–that it will suffer irreparable harm if this Court does not grant a stay. And the Court yields.”
February 22, 2020. Wolf v. Cook County. (No main written opinion.)

26. MINIMIZING CONSTITUTIONAL REVIEW FOR DEATH PENALTY
A judge sentenced James McKinney to death, without considering a mitigating factor–PTSD from childhood. After the McKinney sentencing, the Supreme Court said in a different case that a jury must weigh both aggravating and mitigating factors. McKinney filed to have a jury look at the factors. The 5-4 Supreme Court said that a jury was not required because the original decision was final before the rule change and the new rule would only apply on direct review, not collateral review. Therefore, judges got to decide upon death penalty, jury not required.
February 25, 2020. McKinney v. Arizona. (Kavanaugh.)

27. IMMUNITY FOR GOVERNMENT AGENT KILLING MEXICAN BOY
From the United States side, a border control agent shot and killed 15 year old Sergio Hernandez in Mexico without cause. The 5-4 Supreme Court held that the Hernandez family could not sue for damages because he was not a citizen and not in the United States when killed.
February 25, 2020. Hernandez v. Mesa. (Alito.)

28. PRIVATE FEDERAL INFORMATION USED FOR STATE PROSECUTION
Immigrants were convicted by the State of Kansas for identity theft. They listed wrong Social Security numbers on federal employment forms. The state supreme court overturned the convictions because federal law said those forms were not to be used for anything other than federal immigration enforcement and federal crimes.
The 5-4 Supreme Court overturned Kansas, permitting the state to use the forms for things other than immigration enforcement and federal crimes despite the state itself saying it could not do so.
March 3, 2020. Kansas v. Garcia. (Alito.)

29. LAST MINUTE VOTER SUPPRESSION IN WISCONSIN PART 1
Wisconsin was overwhelmed with absentee ballot requests for an election during the coronavirus pandemic. The state was slow sending out the ballots, disenfranchising voters. Democrats sued for changes, Republicans defended against changes. The lower court ordered the state to accept and count ballots for a few extra days.
On the day before the election, the 5-4 Supreme Court reversed the extension, forcing voters out to polling places during the pandemic emergency. Despite the danger, enough voters came out to flip a seat on the state supreme court. Later in the year, the state supreme court voted 4-3 not to overturn the presidential election probably due to its changed makeup as a result the April election.
April 6, 2020. Republican National Committee v. Democratic National Committee. (Unsigned opinion, Per Curiam.)

30. LAWFUL PERMANENT RESIDENT DEPORTED FOR BEING INADMISSIBLE
Immigrant and lawful permanent resident Andre Barton committed felonies many years ago. He cleaned up his life and he was raising a family when the government decided he should be deported more than a decade after his last offense. It turned out that Barton could not be deported under removal law. Instead, the 5-4 Supreme Court decided he could be deported because he was inadmissible.
Dissenting, Sonia Sotomayor noted, “The majority errs by conflating these two terms [removable versus inadmissible]…Under this logic, petitioner Andre Barton is inadmissible yet, at the same time, lawfully admitted.”
April 23, 2020. Barton v. Barr. (Kavanaugh.)

31. NO LAWSUIT FOR RETIREMENT MISMANAGEMENT UNTIL MONEY IS GONE
Retirement fund managers breached their fiduciary duty by investing in their own mutual funds and paying themselves excessive fees (and other things), losing 748 million dollars from these transactions. Future retirees with defined benefit plans sued under ERISA. The 5-4 Supreme Court said that retirees did not have standing to sue unless and until the account is underfunded. Half a billion dollars is lost but nothing can be done.
June 1, 2020. Thole v. U.S. Bank. (Kavanaugh.)

32. FOREIGN AFFILIATES COMPELLED TO GOVERNMENT SPEECH
Foreign affiliates to American organizations worked around the world to educate people to prevent disease spread. Funding was conditioned upon “policy explicitly opposing prostitution and sex trafficking.” According to the Alliance for Open Society, moralizing “creates an environment where sex workers are more vulnerable to violence and abuse, and consequently at greater risk of contracting HIV.”
The 5-4 Supreme Court overturned lower court decisions and permitted the government to compel its message as a condition to funding. Even the conservative CATO Institute opposed the ruling, noting, “Freedom of speech shouldn’t depend on subtle and legalistic distinctions of corporate law.”
June 29, 2020. Agency for Int’l Development v. Alliance for Open Society. (Kavanaugh.) 5-3.

33. HEAD OF AGENCY MAY BE FIRED FOR NO REASON
Seila Law refused to comply with a demand from the Consumer Financial Services Bureau (CFPB). Seila claimed that the CFPB itself was unconstitutional because the director could not be fired by the president without cause. The Donald Trump administration refused to defend the structure of the agency, as Republicans had been against the agency from the outset. The 5-4 Supreme Court decided that the director could be fired at any time by the president, making the five year term in the law meaningless. Donald Trump quickly replaced the director, as did Joe Biden soon after taking office.
June 29, 2020. Seila Law v. Consumer Financial Protection Bureau. (Kavanaugh.)

34. MONTANA FORCED TO FUND RELIGIOUS SCHOOLS
The supreme court of Montana struck down a state law permitting tax credit for schools under a state constitutional provision saying the state must provide “no aid” to religion. The 5-4 Supreme Court reinstated the law, forcing the state to continue funding religious schools.
June 30, 2020. Espinoza v. Montana Department of Revenue. (Roberts.)

35. ALABAMA VOTING RIGHTS CUT IN THE PANDEMIC
A lower court ordered that witness signatures or notary requirements to vote by absentee ballot for people at risk of COVID-19 was too restrictive, but the ruling was overturned summarily without comment by a 5-4 Supreme Court.
July 2, 2020. Merrill v. People First of Alabama. (Order.)

36. SUMMER DEATH PENALTY EMERGENCY PART 1
The Supreme Court overturned a stay of execution, 5-4. The decades-old case suddenly became an emergency of the highest order. The Court rushed into summertime action, overturning the stay at about 2:00 am, against the wishes of families of victims. The man was executed about four hours later.
July 14, 2020. Barr v. Lee. (Unsigned opinion.)

37. SUMMER DEATH PENALTY EMERGENCY PART 2
The Supreme Court overturned a stay of execution, 5-4, for the second time in three days. In this case, the Court determined that a man with many mental conditions including Alzheimer’s must be killed immediately. Execution complete.
July 16, 2020. Barr v. Purkey. (No main written opinion.)

38. DONALD TRUMP MAY TAKE BILLIONS FOR THE WALL PART 2
A 5-4 Supreme Court again overturned lower courts, permitting Donald Trump to continue taking billions of dollars to fund his border wall project under a “national emergency” as litigation continues without a final ruling.
July 31, 2020. Trump v. Sierra Club. (No main written opinion.)

39. NO PANDEMIC PROTECTION FOR WORKERS OR INMATES
A 5-4 Supreme Court order reversed a lower court order protecting inmates and workers in jails and prisons from COVID-19. Hundreds were infected through shortages of sanitation and lack of social distancing, in violation of CDC guidelines. Also, the lower court found that officials lied about the situation.
August 5, 2020. Barnes v. Ahlman. (No main written opinion.)

2020 SUPREME COURT TERM

As the 2020 Supreme Court term began, the Court was short one Justice. Here are 5-3 purely partisan cases after Ruth Bader Ginsburg died and before Amy Coney Barrett joined:

40. CURBSIDE VOTING FOR DISABLED PEOPLE BANNED
A 5-3 Supreme Court overturned lower courts to permit the Alabama Secretary of State to ban curbside voting even where local governments were able to provide the service without violating state law, increasing the danger of COVID-19 for disabled people.
October 21, 2020. Merrill v. People First of Alabama. 5-3. (No main written opinion.)

41. LAST MINUTE VOTER SUPPRESSION IN WISCONSIN PART 2
A 5-3 Supreme Court summary order denied the state of Wisconsin a few days to receive absentee ballots. Mail-in ballots for the 2020 election must be received by Election Day.
October 26, 2020. Democratic National Committee v. Wisconsin State Legislature. 5-3.

Barack Obama was denied consideration to fill a vacancy on the Supreme Court. Obama was denied so that Mitch McConnell and Republicans could make sure Republican appointees remain the majority after half a century and indefinitely into the future. Republicans did not do this to make the Court more objective. Republicans did not do this for the Constitution. Republicans did this because they wanted real results like these 41 cases. Gorsuch fulfilled his role by producing desired results in these cases. This is why they broke precedent and the Constitution.