Justice Kennedy’s Remarkable OT06
This post was written by Jason Harrow, with research assistance from Adam Chandler.
Justice Kennedy’s just-completed October Term 2006 will certainly go down as one of the most “successful” in the Court’s modern history. Indeed, the statistics are remarkable: Justice Kennedy was in the minority only twice this entire Term, he wrote only one dissenting opinion, and was a perfect 24-for-24 in 5-4 (or 5-3) cases. If the numbers alone weren’t enough evidence of his tremendous influence, he certainly ended the Term with a flourish: he authored two of the Court’s three 5-4 cases that were announced today – siding with the liberals in one and the conservatives in the other – and also wrote the controlling concurrence in the school assignment cases, which he proceeded to read aloud from the bench. It was a remarkable way to end a remarkable Term.
Digging deep back into the archives, it’s difficult to find a Term where the decision of a single justice so often determined the direction of the Court. In the last 20 years, under Chief Justices Rehnquist and Roberts, such an achievement in unparalleled. The closest analogy is Justice Kennedy’s own 1993 Term: in that year, he dissented four times, wrote one dissenting opinion, and was in the majority in 12 of 13 5-4 decisions. Not bad, but it doesn’t measure up to what he accomplished this Term.
Even Justice O’Connor, whom some used to refer to as the “most powerful woman in the world” due to her position in the center of the Court for many years, never had a Term like this. Her most successful Term was OT03, when she was in the minority five times and wrote two dissents; still, in that Term, 4 of her 5 dissenting votes were cast in 5-4 cases (there were 19 5-4’s in OT03). While it’s true that she often wrote “controlling concurrences” whose outsized influence wouldn’t necessarily be reflected in the numbers but which did put a stamp on the Court’s jurisprudence, it’s difficult to make the case that she ever exerted as much influence as Justice Kennedy seems to be right now.
One must look way back in the Court’s history to find any single Term where one Justice had comparable success. Justice Kennedy’s two dissenting votes tied Justice Brennan’s output in October Term 1968; with a larger caseload back then, though, Justice Brennan’s feat that Term is arguably more impressive. Still, one must go further back to Justice Byron White’s October Term 1964 to find a circumstance where a Justice bested Kennedy and dissented only once over the course of a full Term, with no extenuating circumstances such as justice turnover (which can lead to misleading numbers).
The bottom line is that, by most measures, Justice Kennedy’s October Term 2006 has been the most successful Term by a single justice in roughly 40 years.
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.
Comment by Marc Shepherd — June 28, 2007 @ 6:33 pm
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?
Comment by Jeremy Pierce — June 29, 2007 @ 9:09 am
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.
Comment by Marc Shepherd — June 29, 2007 @ 11:40 am
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.
Comment by Jeremy Pierce — June 29, 2007 @ 1:40 pm
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.
Comment by Marc Shepherd — June 29, 2007 @ 1:58 pm