Anthony Kennedy: The Not-So-Swing Vote

After Sandra Day O'Connor retired from the Court, we heard a lot of talk about how Associate Justice Anthony Kennedy would take her place as the Court's "swing vote." Certainly, there is some truth to that. He is the closest thing the Court has to a swing vote by far, but he is no O'Connor.

Jan Crawford Greenburg has a good post over at Legalities explaining Kennedy's role on the Court. She points out that Kennedy has been in the majority of every 5-4 decision this term, which would seem to give him great power, and which has led some people to call this "The Kennedy Court." But, JCG views it differently (and I agree). She says, "It's the Roberts Court v. the Stevens Court." And ultimately, it comes down to being just "the Roberts 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.

Now, one might say, "don't you need the vote of that one justice in order for your ideology to win out?" Well, yes, but the point is this:

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.

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.

The Rehnquist Court (which many, rightfully so, dubbed "The O'Connor Court") was (at least in its later days) a battle for one vote. O'Connor shaped the Rehnquist Court perhaps more than any other Justice. But, that is not true of Kennedy. He is a pretty reliable conservative, so attorneys are not arguing their cases trying simply to persuade Kennedy as they did with O'Connor. He is not nearly as open-minded as O'Connor, which is not necessarily a bad thing, when we think in terms of consistency of the law.

But Roberts has not necessarily won the battle simply by getting Kennedy on his side most of the time. In another post, JCG describes Kennedy's judicial style:

He can seem infuriatingly unmoored. He agonizes over his decisions. He’s been known to change his mind in a case or two. And his writing style is about as grand as his ornately decorated chambers in the Court.

However, Roberts is well known for wanting to decide cases as narrowly as possible and creating a sense of "predictability" in the law. Thus, a complete "victory" for Roberts would require changing Kennedy's style.

If [Roberts] 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.

So, perhaps it isn't the "Roberts Court" quite yet, but it certainly isn't the "Kennedy Court."