Friday, July 16, 2010

Are We Witnessing the End of Justice Kennedy's Role as "Super Median"?

It is an article of faith that Justice Kennedy is the Supreme Court's swing voter, the one justice who controls the Court's important decisions.  Some go as far as to label him a Super Median, because his position on the Court allows him to "exercise significant control over the outcome and content of the Court’s decisions."  On every decision that matters, his vote controls the outcome.  He is "the court's true compass."

Decisions from this past term confuse this conventional picture.  According to Linda Greenhouse, Kennedy is no longer at the center of the Court.  In order to be a true swing vote, Kennedy's vote must be truly available to liberals and conservatives on the Court alike.  This was true on 2007, she writes, a term when Kennedy was in the majority in all 24 decision decided by a 5-4 vote.  Yet this was no longer true this past term.  Concededly, her data set is quite small; all the same, the picture that emerges is one where Kennedy is now part and parcel of the Court's conservative bloc, rather than the Court's enigmatic rudder.  For example, in the 18 cases decided by a 5-4 vote, Kennedy dissented in 5 of them.   The Chief Justice also dissented in five of these cases, while Alito dissented four times, and Scalia and Thomas dissented in three.  This trend leads Greenhouse to conclude that Kennedy is no longer the Court's "center of gravity."

I have three reactions.

First, it may just be the case that Kennedy's views are evolving, and that he ultimately finds himself more closely aligned with the Court's conservative bloc.  On this view, Kennedy's status as swing voter was nothing more than a happy coincidence for him, a coincidence that ended once his views shifted towards those of the conservative justices. The point is not that the conservatives moved towards Kennedy, but that Kennedy is moving towards the conservatives. Greenhouse appears to embrace this view, arguing that the Court's center "has shifted to the right."  

Second, what to make of Greenhouse's argument that Justice Kennedy "divides the world, at least the world of government action — which is what situates a case in a constitutional framework — between the fair and the not-fair" in light of her conclusion that the Court's center is moving rightward?  If Kennedy views the world in terms of fairness, and he now finds himself closely aligned with the conservatives, is this another way of saying that the Court has now come to define fairness through a conservative lens?  (This is one question I wish I could ask Senators Sessions and Hatch, among others).

Third, Greenhouse alludes to Kennedy's recent remark that he has no plans to retire, at least until the next election.  She writes that this makes sense; after all, why retire when you are on the "winning team"?  I think this is off a bit.  If the Court's center is in fact shifting to the right, then Kennedy's statement that he will wait until the next election makes perfect sense.  His team is winning, yes, and his retirement under an Obama administration would  mean that his team would no longer win.  Would Greenhouse write the same thing if the oval office were occupied by a conservative President?  This is another way of saying that the important point is not about his team winning or losing, but about his personal policy agenda garnering a majority of votes on the Court.  This is the real reason justices hold on for as long as they can.

I would think, in other words, that a justice would be much less likely to retire when he plays the swing justice role.  This is why, if Greenhouse's conclusions are true, Justice Kennedy might be far closer to retirement than he ever was.

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