Justice Kennedy’s Remarkable OT06
on Jun 28, 2007 at 5:20 pm
This post was written by Jason Harrow, with research assistance from Adam Chandler.
Justice Kennedyâ€™s just-completed October Term 2006 will certainly go down as one of the most â€œsuccessfulâ€ 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 werenâ€™t enough evidence of his tremendous influence, he certainly ended the Term with a flourish: he authored two of the Courtâ€™s three 5-4 cases that were announced today â€“ siding with the liberals in one and the conservatives in the other â€“ 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, itâ€™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 Kennedyâ€™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 doesnâ€™t measure up to what he accomplished this Term.
Even Justice Oâ€™Connor, whom some used to refer to as the â€œmost powerful woman in the worldâ€ 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 5-4â€™s in OT03). While itâ€™s true that she often wrote â€œcontrolling concurrencesâ€ whose outsized influence wouldn’t necessarily be reflected in the numbers but which did put a stamp on the Courtâ€™s jurisprudence, itâ€™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 Brennanâ€™s output in October Term 1968; with a larger caseload back then, though, Justice Brennanâ€™s feat that Term is arguably more impressive. Still, one must go further back to Justice Byron Whiteâ€™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 Kennedyâ€™s October Term 2006 has been the most successful Term by a single justice in roughly 40 years.