President Donald Trump will be announcing a Supreme Court nominee to replace Justice Anthony Kennedy soon, and Thomas Hardiman is believed to be one of the top people on his list. Because Justice Anthony Kennedy was a bit unpredictable in his opinions, sometimes siding on conservative rulings and sometimes siding on more liberal decisions, many are wondering if a Hardiman choice would change that significantly. Is Hardiman more liberal or conservative?
Hardiman has been described by FiveThirtyEight as “more ideologically enigmatic,” but supported by Trump’s sister, Maryanne Trump Barry. In fact, some say there is evidence to suggest that Hardiman might vote more liberal once he was on the Supreme Court. This is partially because he is not always outspoken in his decisions, leaving questions about his viewpoints. (However, in 2017 SCOTUS Blog pointed out that most of Hardiman’s decisions on the more hot-button topics, while he was a federal appeals court judge, were conservative.)
As far as gun rights go, he defends the Second Amendment and believes gun owners should not have to demonstrate “justifiable need” to qualify for a gun. However, he also has defended preventing violent felons from having guns. They can appeal their status, but only in very rare situations would a felon be allowed to have a gun, he has said.
But as far as marijuana legalization is concerned, he hasn’t said much, if anything, about that.
Hardiman started from a working class background and slowly worked his way up. He speaks fluent Spanish and was an exchange student in Mexico. He has worked at an immigration legal aide office. But he has also, at times, affirmed decisions against noncitizens in unpublished opinions, SCOTUS Blog pointed out. But he’s also vacated opinions by the Board of Immigration Appeals, such as ruling in favor of an asylum applicant who wanted to come to the U.S. so he wouldn’t be involuntarily recruited into a violent gang in Honduras.
But that won’t mean he’ll always side with the underdog. Liberal groups have pointed out that some of his opinions have sided on limiting the ability of citizens to hold police and other authorities accountable. In Florence v. Board of Chosen Freeholders, Albert Florence had been searched twice while in New Jersey jail for seven days. He was arrested on a traffic warrant that he had actually already paid. He said the searches were unreasonable because he was being held for not paying a fine, and that actually wasn’t a crime in New Jersey. Hardiman sides against Florence, saying that jail strip searches were reasonable “on balance,” although he did not say they would always be reasonable. The Supreme Court affirmed Hardiman’s decision.
Hardiman also wrote another highly controversial opinion in 2010, Kelly v. Borough of Carlisle. He said there was no clear First Amendment right to record police officers during a traffic stop.
Hardiman hasn’t weighed in directly on abortion decisions yet. He did join an opinion that vacated a conviction of an anti-abortion protester who was arrested for not moving away from a sidewalk in front of an abortion center where he was leafletting. But that seemed to be more of a First Amendment question rather than an abortion question.
Hardiman’s tougher to pin down on religion. He has ruled in favor of students’ ability to express religious beliefs in public schools, such as siding with a mother and son who were barred from reading their Bible during a kindergarten show and tell. But he has also sided with prison officials when prisoners filed lawsuits saying their ability to exercise religion was restricted, SCOTUS Blog pointed out.
Hardiman also allowed a gay man’s gender-stereotyping claim to move forward, reversing summary judgment for the company. He said the plaintiff was harassed because he didn’t conform to the company’s vision “of how a man should look, speak, and act.”
In summary, it seems that although Hardiman leans conservative in many of his rulings, he’s been known to rule on a more liberal side depending on the specific case.