After the partial-birth abortion decision caught us all off guard (who expected it in April?), everyone’s ready for the school integration cases, which may give us another chance to say “landmark.” The justices are weighing whether to strike down voluntary plans in Seattle and Louisville, where officials contend they must consider a student’s race in order to achieve a certain racial balance in their schools.
It seems likely that the Court will strike down the programs as unconstitutional—probably by a 5-4 vote, with Chief Justice John Roberts writing the opinion. The four more liberal justices will dissent, and much will be made of the fact that Anthony Kennedy, again, is the swing vote in the majority.
It’s been well documented by now. Kennedy has been in the majority in every single 5-4 case this term. Last month’s partial birth abortion decision, which Kennedy wrote, was widely seen as proof of his role in shaping the Court’s direction. With a new lineup of justices and the Court in flux, it’s Kennedy who’s now seen as the key player, the go-to guy who replaced Sandra Day O’Connor as the critical swing vote.
Some are going so far as to call it the “Kennedy Court,” just as people used to refer to the old Court, led by Chief Justice William Rehnquist, as the “O’Connor Court.”
Not to sound like AMK himself here, but I’ve been struggling with that. That label just doesn’t fit—nor does it capture what’s going on inside the Court. I know Kennedy is the Man to Watch. But I don’t think we’re seeing the emergence of the Kennedy Court.
This is a Supreme Court engaged in a fierce battle of ideas, a big-picture struggle over the role of the Court and the direction it’s going to take. When you talk about long-range influence over the law, it’s the ideas that define the Court. It’s a Court in struggle—not for the vote of one justice, but for an intellectual mooring.
It’s the Roberts Court v. the Stevens Court.
And as this term is beginning to make clear, in that battle, Roberts’ vision is going to win out. It may not be this term, though the Chief certainly will prevail in those big-issue cases more than JPS will. It may not be in every case, or with much in the way of consensus. But even if Stevens stays another decade (to 97!), I’d bet that Roberts is going to carry the day with this group of justices.
Right now, he’s playing the hand he’s been dealt. He is presiding over a Court with four judicial conservatives, not five. But Kennedy doesn’t have to be the wild card--far from it.
For one thing, Kennedy is not O’Connor. Kennedy doesn’t instinctively seek the middle or try to provide balance. He is perfectly willing to vote with conservatives nine times in a row—then vote with them a tenth—if that’s how he sees the case. He wants to be consistent. And when he decides on his position, he’s pretty comfortable there. Unlike O’Connor, he isn’t cautious. He doesn’t try to hold back the majority with a split-the-difference approach.
Kennedy also happens to be more comfortable with the conservative position than O’Connor ever was. In the battle for Kennedy, liberals are going to lose a lot more than they win. (We saw it yesterday in a 5-4 habeas case that had Kennedy joining Justice Thomas and the conservatives, and Stevens writing a pointed dissent.)
Look at Gonzales v. Carhart. That decision makes clear Kennedy’s vote is not going to be up in the air nearly as often as O’Connor’s. Sure, Kennedy may be with liberals on some cases, as in the recent decision (by Stevens) rejecting the EPA’s claim that it lacked authority to regulate greenhouse gases from new cars and trucks.
But the abortion decision shows everyone that Kennedy will side with conservatives more often than with liberals—and certainly a lot more than O’Connor did in those big cases people care so much about. We’ll see it again in the race cases. On issues of race, Kennedy is never a swing vote. That’s as area—along with free speech--in which he’s been entirely consistent over the years. He opposes racial considerations and racial preferences much more so than O’Connor ever did.
Indeed, the race cases will be less about Kennedy’s new power to dictate the outcome of a decision than about how conservatives—led by Roberts and aided by the new vote of Sam Alito—are steering the Court in a different direction.
The most interesting aspect of the race case is how aggressively Roberts, assuming he assigned himself the opinion, will actually write it. It could test his views on minimalism and modesty, both of which are key components of his overall vision for the Court.
With the five conservative justices emphatically against race-based decision making, it’s possible for Roberts to write broadly and take aim at Grutter v. Bollinger, the 2003 affirmative action case, in which the Court—with O’Connor providing the key fifth vote with liberals--upheld an affirmative action program at the University of Michigan Law School.
But Roberts could hold back—even though I suspect he has his votes to overturn Grutter. He is not going to compromise his principles for the so-called “good” of the Court, but he has talked a lot about writing decisions more narrowly. Some have assumed he’s talking about reining in Justices Scalia and Thomas. I don’t think he is. Roberts sees the law much like Scalia, and it’s hard to see why he’d object to a Court with that kind of approach.
No, it seems to me that talk is about Kennedy.
Roberts realizes he’s presiding over a Court with just four judicial conservatives. But he surely must want to preside over a Court that functions as a Court—not one with a justice whose vote always is up for grabs and whose direction is set by that vote. That’s the position William Rehnquist found himself in with O’Connor. Lawyers wrote briefs and argued cases targeted at getting her vote. Roberts would say that’s bad for the law and bad for the Court—and I’d bet the other justices, including Kennedy, would agree.
Roberts is trying to shift the debate inside the Court. His position is that the Court--instead battling for one justice’s vote and swinging for the fences in the big cases--should take a more restrained and narrow approach.
If he could persuade the Court to write more narrowly, it would minimize Kennedy’s role. That would make the Court’s jurisprudence more coherent and clear, with better direction and guidance for lower courts and litigants.
That would be the Roberts Court.