The new John Roberts Supreme Court is only one term old and yet already we're all wrong about it.
Liberals had feared, and conservatives had feted, the end of judicial review as we know it, at least until this week's blockbuster ruling on the scope of presidential war powers in Hamdan v. Rumsfeld proved that bit of conventional wisdom wrong, practically before it had become conventional. Predictions of a new era of hands-off judicial minimalism may have been premature.
Yes, we are seeing the expected shift to the political right with the replacement of moderate Justice Sandra Day O'Connor by conservative Justice Samuel Alito. But, more significantly, the role of swing justice has itself swung from O'Connor to Justice Anthony Kennedy. On virtually all the most divisive issues, today's court is now a Supreme Court of One.
Yes, Kennedy has inherited the power to decide crucial cases, and he's started to show us this term what that might mean. In Hamdan he joined with the court's left wing to invalidate the military tribunals President Bush had concocted for the detainees at Guantanamo Bay. The majority opinion he joined, authored by John Paul Stevens, was neither minimalist nor mild: "In undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."
But more crucially, Kennedy has appropriated O'Connor's trick of writing either an opinion or a concurrence that goes on to become the law of the land. O'Connor was famous (and not always in a good way) for signing on to an opinion, but on narrower grounds than the other four justices in the majority. The trick is that the justice who decides the case most narrowly then speaks for the whole court. And that's how O'Connor imprinted her views on an awful lot of jurisprudence.
But unlike O'Connor, who invariably pooh-poohed her pivotal role on the court (always claiming that she had only one vote, like every other justice), Kennedy is said to relish it. In his controversial book Closed Chambers, Edward Lazarus, a former clerk for Harry Blackmun, claimed that Kennedy actively seeks out these pivotal positions on the court, deliberately staking out positions that would make him a "necessary but distinctive fifth vote for a majority."
The fact that Kennedy is not rigidly moored to any one easily classified ideology or interpretive theory has led to some spectacular defections from the court's conservatives, every one of which stand as festering sores for his conservative critics. This was, in their minds, Robert Bork's seat, after all.
It was Kennedy who allied with justices David Souter and Sandra Day O'Connor to preserve the core holding of Roe v. Wade,and it was Kennedy who authored the court's most sweeping defense for decriminalizing gay sodomy. And Kennedy, reversing himself, who voted with the court's liberals to strike down the death penalty for juveniles and for the mentally disabled. Kennedy also authored a crucial church/state opinion prohibiting sectarian prayer at a public-school graduation.
The fact that Anthony Kennedy is rumored to be somewhat suggestible—easily influenced by his colleagues, the media, his affection for foreign things—makes his critics even more nervous. It sometimes makes his fans even more so: Adam Cohen recently wrote of him in the New York Times that, at the very least, "there is something refreshing about a justice who genuinely seems to have an open mind." But since when is doing justice meant to be a refreshing enterprise?
If Edward Lazarus was correct in characterizing some vital Kennedy decisions as the fruits of "a tug-of-war for Kennedy's mind" between his law clerks, just imagine how fascinating it has become to see that same, higher stakes, tug of war playing out, not only behind the oak doors of judicial chambers but in the courtroom, in the newspapers, and among the justices themselves.
From James Dobson, who famously called Kennedy "the most dangerous man in America," to oral advocates at the court, who increasingly respond to the justice at oral argument with a reverence usually reserved for conversations with the Burning Bush, efforts to influence Kennedy are no longer limited to case conference. The hottest game in current Supreme Court brief-writing is to quote Kennedy gratuitously and often. Even if you find yourself citing an asterisk in the footnote of a Kennedy dissent, inserting something flattering to Kennedy is almost as important as running the spell check.
The other justices are playing the quote-Kennedy game, too, presumably in hopes of wooing him to their side and keeping him there. Read the opinions and dissents in Rapanos v. United States, the major Clean Water decision that came down earlier this month. Embedded within are coded love notes to Kennedy.
The justices may also be cozying up to Kennedy in other ways: He won himself some sweet writing assignments this term (data from the Georgetown Supreme Court Institute's term overview shows him authoring five of the term's most "high profile" opinions. Most of his colleagues authored one or two). Some court-watchers have suggested that the bizarre trio of Stevens, Kennedy, and Chief Justice Roberts, who jointly issued a strange concurring opinion in the refusal to hear Jose Padilla's case this past April, was yet another effort by the court's liberal and conservative leaders to show Kennedy more love. Roberts is a savvy insider who knows that over the years the abuse heaped upon the court's moderates from the right has pushed them into the arms of the court's liberals. Make no mistake about it: Justice Kennedy is now being love-bombed.
And what is the crucial swing voter doing with these newfound superpowers? Let's do the numbers. While it's still too early to predict, the invaluable annual end-of-term tally done by SCOTUSblog, and the numbers from Georgetown, show that Kennedy voted with the majority in 88.4 percent of the cases this term. Only the chief justice had a better record (see Walter Dellinger's discussion of that fact here). Kennedy authored eight majority opinions (only Scalia authored more) and seven concurrences, more than any of his colleagues. Moreover, in the court's 11 5-4 cases decided this term, Kennedy was in the majority 75 percent of the time. But again, that's also only half the story. The other half is how Kennedy used that vote to shape the law.
It was Kennedy who provided the fifth vote in Hudson v. Michigan, an amazing criminal law case in which he voted with the court's four reliably conservative jurists—Roberts, Alito, Antonin Scalia, and Clarence Thomas—to hold that the remedy for police violations of the centuries-old "knock and announce" rule, required whenever the cops serve a warrant, was, in effect, nothing. But while Scalia's majority opinion showed a readiness to forever end the practice of throwing out evidence illegally obtained by the police, Kennedy's moderating fifth vote put on the brakes by insisting, in a separate concurrence, that the general rule of excluding evidence gained illegally was not in jeopardy. Future challenges to the exclusionary rule may hereinafter be posed to a Supreme Court of one.
Kennedy provided the key fifth vote in the term's major environmental case, Rapanos et al. v. United States. The case tested the authority of the Army Corps of Engineers to enforce the Clean Water Act, and the court's four conservatives would have dramatically curtailed the corps' powers. It was Kennedy—again writing separately—who refused to go as far as Scalia, again, urged. In fact, Kennedy left open the possibility of far broader regulation than his colleagues would tolerate. And thus it was Kennedy whose opinion in Rapanos will become the standard for the Army Corps as it fashions future policy. Looking forward to next year's big greenhouse-gases case, which explores whether the Environmental Protection Agency has an obligation to regulate carbon dioxide, an attorney for the Sierra Club has already suggested that "Rapanos means … we will write our brief for Anthony Kennedy and maybe a little bit for Roberts."
Kennedy's was the moderating, and controlling, fifth voice again in LULAC v. Perry, the cacophony of a Texas redistricting case, where he sided with the court's conservatives to defeat the claim that Tom DeLay's midcensus redistricting festival was unconstitutional. But he joined with the liberals to find that a new congressional district violated the rights of Hispanic voters, and he held open the prospect of some future hypothetical gerrymander that really would offend the Constitution. The lesson again: Anyone mounting a political redistricting challenge will need to persuade a court of one.
And probably most important, Hamdan, perhaps the most consequential separation-of-powers case in recent memory, again pivoted on Kennedy's vote. He sided with the court's liberals but again refused to go as far as they would have led him.
So, then what does all this nipping and tucking, shucking and jiving mean for Kennedy and the court? It's still just too early to tell. He clearly intends to fill the shoes recently vacated by O'Connor; shoes she in turn inherited from Justice Lewis Powell. They each played the role of moderating a polarized court; building bridges, navigating toward the center—a center where most of the nation was most comfortable. Each took abuse for that when they sat on the court. Each was largely celebrated for it when they retired. Kennedy, too, appears poised to hold that center together. Indeed more often than not, he seems to be leaving his options open, laying the groundwork for revisiting these issues more fully in the future, as he becomes more comfortable in this role.
A lot of the soaring, Keatsian Kennedy rhetoric of the previous years—opinions that once brimmed with the language of the-ineffable-glory-of-unflinching-human-dignity and such—seems to have been toned down of late, as well. But then, perhaps Justice Kennedy doesn't need to write about the ineffable glory of anything, anymore. He can finally just sit back and bask in it instead.
A version of this piece appears in the Sunday Outlook section of the Washington Post.