Are Roberts and Kennedy drifting from the right toward the center?

Supreme Court Breakfast Table

Are John Roberts and Anthony Kennedy Drifting From the Right Toward the Center?

Supreme Court Breakfast Table

Are John Roberts and Anthony Kennedy Drifting From the Right Toward the Center?
An email conversation about the news of the day.
June 22 2017 12:38 PM

Supreme Court Breakfast Table

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Entry 3: Are Roberts and Kennedy drifting from the right toward the center?

John Roberts
Chief Justice John Roberts at the Supreme Court building in Washington on June 1.

Jonathan Ernst/Reuters

Dear Walter, Pam, Mark, and the Judge,

Welcome back to my favorite week of the year! Walter, it often amazes me that when we started this tradition it was radical online norm shattering, and today it’s just old-school journalism. I think next year we must move to the Snapchat end-of-term roundup or my tweens will be mortified.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

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Walter makes a good opening observation about the fact that you know something is off when the biggest case of the year involves recycled tire materials for playgrounds. And I think it’s clear that what made this a landmark term wasn’t the raft of intellectual property and the error correction criminal cases Pam listed but the unprecedented atmospherics around a term in which a seat was held vacant until March, a confirmation occurred over a filibuster, and a court that was terrified at the prospect of being an election issue nevertheless became an election issue, even as the justices mostly pretended it wasn’t. Key cases (see tires, playground, above) were held for more than a year or kicked away, so the court could continue to look like it was conducting business as usual even as the whole term teetered under the weight of the election, the new president’s travel ban, and the infighting in the Senate. In a strange way, the cases that remain are important, yes, but also kind of the potted palms in the Victorian parlor drama called “Nothing to See Here” that in my mind represented this term.

I do want to ask about one emerging theme, from the previous term and this one, involving the slow drift of Chief Justice John Roberts and to a greater degree Anthony Kennedy from the right to the center-right wing of the court. We talked about this last year at this Breakfast Table, and I know Mark has thoughts about Kennedy’s evolution on race in recent years. But I would be remiss if I didn’t just say that whether it’s a reaction to Trumpism or increased polarization in D.C., these two jurists are both thinking about “othering” in new ways now. Something is changing when the same chief justice who once famously told us that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race” also authored the majority opinion in Buck v. Davis, in which he renounced the use of racial stereotypes in jury instructions with the observation that “some toxins can be deadly in small doses.”

Yet again, in Thursday morning’s opinion in Maslenjak v. United States, the case Pam mentioned as the test of “whether the government can strip a naturalized citizen of her citizenship for making an immaterial false statement during the naturalization process,” Kennedy and Roberts joined the broad majority (authored by Elena Kagan) to say that a naturalized U.S. citizen shouldn’t lose citizenship based on a lie on their immigration forms unless that false statement in and of itself would have justified denying naturalization. The high court bounced the case back to the 6th U.S. Circuit Court of Appeals to figure out whether false statements made in this case would have led to a different outcome. (Parenthetically, this is one of those classic “second-person” Kagan opinions that asks readers to imagine themselves as someone else: “Suppose, for reasons of embarrassment or what-have-you, a person concealed her membership in an online support group or failed to disclose a prior speeding violation …”)

Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito (who writes separately) all concur in this decision but on narrower grounds, with Gorsuch warning that the holding goes too far and that “this Court often speaks most wisely when it speaks last.”

I would just note here what I have suggested elsewhere. Had Merrick Garland been confirmed, he would have been on the center left of this court along with Stephen Breyer. With Roberts and Kennedy drifting center right, might the Supreme Court have been the last place in D.C. with a moderate middle?