Comments on: Justice Kennedy’s Remarkable OT06

By: Marc Shepherd

Marc Shepherd — Fri, 29 Jun 2007 17:58:46 +0000

Well, what we have here is a 4-1-4 split, just as the Court had in Bakke. I believe lower courts treated Justice Powell’s solo opinion as controlling on those matters for which he wrote separately. And I believe lower courts would treat Justice Kennedy’s opinion as controlling in that sense, as well.

This is subject to the huge caveat that a lower court would need to determine, first, that a particular case’s fact pattern put it outside of the portions of the main opinion that Justice Kennedy joined.

By: Jeremy Pierce

Jeremy Pierce — Fri, 29 Jun 2007 17:40:31 +0000

So isn’t it fair to say, then, that there really isn’t any controlling opinion on the matters not settled by the parts of the plurality opinion that Kennedy joined? Even if Kennedy’s opinion were clearer, they would only be controlling if the dissenters endorsed them, right? But the dissenters didn’t join any sections of Kennedy’s opinion, and he didn’t join any sections of the dissent.

By: Marc Shepherd

Marc Shepherd — Fri, 29 Jun 2007 15:40:36 +0000

In the school desegregation cases, the Chief Justice’s opinion is certainly controlling in every section that Justice Kennedy joined, since those sections have five votes.

The problem is what to do about the sections Justice Kennedy did not join. The meaning of the Kennedy opinion is that, in effect, there are five votes on the Court (his plus the dissent) for the proposition that race can be taken into account, in certain circumstances. Kennedy is willing to permit consideration of race to a greater extent than the other four conservatives, but to a lesser extent than the four liberals.

In a future case, a lower court could rely on Kennedy’s opinion to uphold a plan that the remaining four conservatives would have invalidated. But it would need to be a plan where the disputed issues fall into the grey area where the Roberts opinion doesn’t have five votes. Since the Kennedy opinion was murky about that (he was talking about hypothetical plans, not any actual plan in existence), one won’t know for sure until the next time the Court takes such a case.

By: Jeremy Pierce

Jeremy Pierce — Fri, 29 Jun 2007 13:09:58 +0000

I keep seeing people referring to Kennedy’s concurrence as controlling, but that seems wrong to me. If I’m not seeing this correctly, please explain where I’m wrong. My understanding is that the parts of the plurality opinion that Kennedy endorses are controlling, since he and the plurality all endorse them. The parts he doesn’t endorse are not controlling, since that doesn’t get a majority. Similarly, his concurrence does not become controlling, because that only has one vote. So why see his concurrence as controlling? Shouldn’t it just be the parts of the plurality opinion that he supports that are controlling?

By: Marc Shepherd

Marc Shepherd — Thu, 28 Jun 2007 22:33:08 +0000

The Chief Justice also had a remarkable term in his own way, a fact that shouldn’t go unnoticed.

According to the stat pack, he wrote just 11 opinions, which has to be a modern low for a justice serving a full term. The stat pack credits him with:

6 full majorities
2 pluralities
3 dissents
1 concurrence

That score-sheet could be called the definition of judicial minimalism. He seldom concurs or dissents separately (his dissents are usually the main dissent for a given case). That’s a very different approach than Justices Stevens, Scalia, and Thomas, who write separate dissents and concurrences quite frequently.

Of the eight cases in which the Chief assigned himself the opinion, two were unanimous. But in two of the remaining six, he was not able to attract five votes (i.e., himself plus four). For someone who has spoken about the importance of the court speaking with one voice, it must have been a slightly disheartening end to the term.

Incidentally, the sum of his majorities, pluralities, dissents, and concurrences comes to 12, not 11. I don’t know if that’s a counting error in the stat pack, or if I’m misreading the data.