Analysis

If it has been so that the Supreme Court could properly be called the “Kennedy Court,” because of Justice Anthony M. Kennedy’s grip on a tie-breaking vote much of the time, that may well be even more so when the Justices open a new Term next October.  Without Justice John Paul Stevens, who announced Friday that he is retiring soon, Justice Kennedy moves into position to become a frequent “assigning Justice.”  That is a role not well known beyond Court-watchers, but it is quite important, and can make a difference in how ambitious, or cautious, the Court is in ruling on major, hard-fought cases.

But Kennedy also will no longer be an object of Justice Stevens’ efforts to marshal a majority of the Court for results that are — more often than not — liberal rather than conservative.  There is, at present, no other member of the Court’s liberal bloc likely to match Stevens’ ability to persuade a sometimes-reluctant Kennedy to join with that bloc in a closely divided case.  If Kennedy is to vote for liberal outcomes, it may well have to be more of a personal choice than it has seemed to be up to now.

These two changes in the Court’s internal dynamic, as Kennedy moves up a notch in the Court’s seniority rank, might well pull him in opposite directions — but still winding up holding the decisive vote.   An explanation is in order.

First, take the issue of Kennedy’s soon-to-emerge role as an “assigning” Justice.  When the Court is divided on any case being decided on the merits, the senior Justice in the majority gets to select a colleague (or take on personally) the task of writing the opinion for the majority.  Depending upon who gets the assignment, that can shape the actual outcome of the case, and also influence its breadth or narrowness.  Also, a colleague whose support may be somewhat shaky can be handed an assignment in order to nail down that colleague’s vote and preserve a narrow majority.

If the Chief Justice is in the majority when the Court divides, the Chief always has the assigning function, because, however long in the job of Chief Justice, that member of the Court always has top seniority.  Only if the Chief Justice is not in the majority does the assigning task then fall to the Justice next highest in seniority.   That has been Justice Stevens, for 16 years of his 34 years on the Court.

But Kennedy is moving up only a single notch in seniority.  He is still outranked in seniority by Justice Antonin Scalia.  So, if the Court’s eight other Justices were to split along conservative and liberal lines, and the four most likely conservative Justices attracted Kennedy’s vote, the assigning task would fall to the Chief Justice.  In any divided Court with Kennedy and Scalia on the same side, Scalia would always be the assigning Justice should the Chief Justice not be on that side.

But, if Kennedy were to line up, in a divided case, with the Court’s four moderate-to-liberal Justices (assuming Stevens’ replacement sides with that bloc), Kennedy would always have the assigning task, inheriting it from Stevens.  He would outrank, in seniority, all of the Justices in that bloc.   He thus will be able to shape even the Court’s more liberally inclined outcomes, by the way he chooses the opinion authors.  And, if he thought any of the other four might use an assignment to write an opinion more sweeping than he would want, he could assign the task to himself, and keep it within whatever bounds he chose so long as it did not drive off one of the four other votes he would need to keep a majority.

Would Kennedy be inclined to line up more often in coalitions with that bloc, just to get the assigning task?  It might have that effect on him, at least some of the time.  It is not just a ceremonial task, and can, indeed, be an opportunity leading to a more significant leadership role.  Stevens surely used it that way.

But now turn to the question of the departure of Stevens, and what that means to colleagues’ attempts to influence Kennedy to join the moderate-to-liberal Justices.  It is widely assumed that Stevens has become a highly influential “play-maker,” or “majority-massing” Justice, with a capacity to lead the Court toward outcomes that he would prefer.  And it is assumed just as widely that his influence has worked, at least on some important cases, with Kennedy.

Perhaps the best example of that assumed influence came two years ago, in what was the Court’s most important decision yet in a “war on terrorism” case — the 2008 ruling in Boumediene v. Bush.  The Court initially refused to hear the detainees’ appeal in that case, and the reason very likely was that the Court’s more liberal Justices could not be assured of Kennedy’s vote on the merits if those four voted (as they were entitled to do) to grant review.  But the common belief is that Stevens kept working on Kennedy, privately, and the Court ultimately switched, granted review, and wound up deciding in favor of a new constitutional right for detainees — in a sweeping opinion written by Kennedy (and assigned to him by Stevens).

But Stevens will no longer be on the Court to reach out to Kennedy in situations like that, and that role is just not likely to be filled by any other Justice.   Kennedy, then, perhaps would be more on his own.  Would his own philosophical instincts, which in general seem to run more to the conservative than to the liberal, lead him toward liberal outcomes?  That is, at a minimum, doubtful.  He might well become more comfortable voting those instincts in the future.

Although the Court so far has not done very much to shape the docket that it will confront when it returns in October, without Stevens, there is sure to be abundant controversy that will divide the Court.  And then the “new” Kennedy Court may begin to materialize.

Posted in Analysis