January 18, 2006

"With O'Connor soon to be out of the picture, Kennedy may now get the chance to really make some constitutional hay."

Dahlia Lithwick comments on the Oregon assisted suicide case and the role of Anthony Kennedy on the newly reconfigured Court:
[A] key to understanding Kennedy's role as a swing voter is simpler: He just really, really likes the power. In his book Closed Chambers, Edward Lazarus, a former clerk for Justice Harry Blackmun, writes that Kennedy bragged about his ability to occupy one of the pivotal positions on the court, deliberately and craftily espousing views at conference that would make him a "necessary but distinctive fifth vote for a majority." Like O'Connor, Kennedy may be a legal politician before he is an ideological purist. And with O'Connor soon to be out of the picture, Kennedy may now get the chance to really make some constitutional hay.

All of which raises another question now bandied about by hard-core court-watchers: What will happen when the good-natured and temperate Chief Justice Roberts begins to work his twinkly charm on Kennedy? Is it possible that while Scalia's insults helped push the conservative Kennedy toward the left, the tractor beam of Roberts' niceness may pull him back into the fold? That's certainly the hope of the political right. But if today's opinion in Gonzales is a harbinger of things to come, Roberts has some fairly heavy-duty twinkling ahead of him.
How much will Kennedy be affected by knowing that we think Roberts will influence him? On New Year's Eve, responding to a commenter who opined that Kennedy will control the Court, I wrote:
Even though I've said things like this myself, I think it underestimates the intellectual and charismatic powers of the new Chief Justice. So I want to make a different prediction for what 2006 will be like for the Supreme Court: Kennedy will work with John Roberts to forge a newly coherent moderate-conservative position. The project of creating an articulate moderate position will be so compelling and promise such benefits that Stephen Breyer will contribute his formidable skills, and we will see the era of fragmented, ad hoc decisionmaking come to an end.
Of course, that's prediction melded with hope. I hate to think the justices craft idiosyncratic positions to gain attention and power. Majority opinions that clearly articulate legal doctrine are too important. If Lazarus's characterization of Kennedy were true -- and I can't say that it is -- we should be bitterly critical of him.

But we should see that there are legitimate ways judges analyze legal issues that will situate them in the middle. You can be a faithful judge without being what Litwick calls an "ideological purist." And the opposite of "ideological purist" is not "legal politician." In fact, the "ideological purist" may well be too much of a "legal politician."

15 comments:

Simon said...

I think Kennedy relishes this moment (as I wrote previously, "I think Kennedy will more than ever feel the allure of becoming the court's swing vote; the pressure on him to defect will be intense, and [given his previous record] I think he will likely succumb") but I doubt he will have much chance to get as comfortable in the pivotal seat as O'Connor. With a Stevens departure within the next five years certain, a Ginsburg departure in the same time frame possible, a Souter retirement rumored, and thus re-inforcements for the Roberts-Alito bloc on the way, Kennedy may get a term or two as the swing justice, but I think that it only takes one more appointment to render his vote - and thus, his opinion - unnecessary.

All of which is good news for Constitutional law. It isn't healthy for the law of the land to turn on the personal proclivities of one Justice, whether that Justice is Sandra Day O'Connor, or a fortiori, Tony Kennedy.

Simon said...

Ultimately, by the way, this is all idle speculation, because only one person can really say for sure what Justice Kennedy will do...

Linda Greenhouse.

bearbee said...

"...deliberately and craftily espousing views at conference that would make him a "necessary but distinctive fifth vote for a majority."

Ugh

Sloanasaurus said...

Althouse, I think your so dead wrong about Roberts. Roberts will not be a moderate. Your mistake is that you are overlooking the human side of Roberts. This human side will keep Roberts firmly entrenched on the Conservative wing of the Court. Why... If Roberts shifts left and becomes a moderate he will be abandoning his social and cultural life, i.e. his "circle of friends." Roberts social life revolves around "conservative" politics. His wife is entrenched in it too.. This is a circle he has had his whole life. You won't see Roberts abandoning his circle...you won't see it happening...ever. Neither will it happen to Alito, who is also well grounded in Washington from his days in Justice.

In contrast, Kennedy and O'Conner had no connection to Washington when they were appointed to the Court. Kennedy was a California lawyer and judge on the 9th circuit and lived in California his whole life. Kennedy's life was California, not Washington. Same with O'conner, she had no connections to conservatives in Washington. She was from Arizona and had spent her whole career in Arizona politics.

Al Maviva said...

I'd settle for Kennedy just deciding to write comprehensible decisions that are actually grounded in something other than his personal sentiments on the day he writes the opinion. Defining the mysteries of life for one's self? To my mind, that rationale occupies a co-equal position in the legal Hall of Shame with the Penumbral Emanations of Griswold. It's bloody irresponsible (and useless to us practitioners) for a Justice to write so sloppily, and so clearly without textual moorings.

Simon said...

"It's bloody irresponsible (and useless to us practitioners) for a Justice to write so sloppily, and so clearly without textual moorings."

That's pretty much the main reason why I like Kennedy even less than O'Connor. It isn't just that I share more views in common with O'Connor than with Kennedy, it has to do with their approach.

Think of the court's job as painting a house to a client's specification, each room an area of law. The maddening, infuriating thing that O'Connor insufferable was that she insisted on painting with a modelmaker's brush (where Scalia, for example, would use something sensible, like a roller, and paint it in the color the client - in this analogy, standing for the text - demanded), and often in idiosyncratic colors of her own choosing. But Tony Kennedy, on the other hand, is the kind of guy who picks a color he likes - no matter how bizarre or at variance with the client's request - and smears it on using the time-honored "throw a firework into a can of paint and stand well back" technique.

So the very restraint that made O'Connor maddening also, to an extent, limited the damage she would do, while Kennedy - who couples grandiloquence, a desire for sympathetic media coverage, and by even the most sympathetic accounts, the self-disciplined legal mind of a loaf of bread - has the potential to do immense damage.

For that reason, I'm glad he will be pivotal for only the briefest moment.

amba said...

Sloanasaurus,

You may underestimate the insulation of the Supreme Court from the outside world, the way it is a world unto itself, with its own gravitational field, and its own gravitas which makes many judges behave differently there than you might expect, freed from the ordinary pressures of their social and political matrices.

I hope Ann's hope/prediction comes true. It's unpredictable.

brylin said...

Sloanasaurus, I am in agreement with you regarding your assessments of Roberts, Alito, Kennedy and O'Connor.

Sloanasaurus said...

"...and its own gravitas which makes many judges behave differently there than you might expect, freed from the ordinary pressures of their social and political matrices..."

Perhaps...but I am arguing that such a change would have to occur with the Justice both professionally and personally. Basically, Roberts would have to find new friends if he went moderate or liberal. Kennedy did not because he had no friends in Washington at the time.

Consider other famous judges who have gone left...

Blackmun - spent his whole life in the midwest. Never ran with the DC crowd

Souter - spent his career in New Hampshire government and courts.

In contrast, both Scalia and Thomas had careers (and social lives) in DC before moving on to the Supreme Court.

aidan maconachy said...
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aidan maconachy said...
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downtownlad said...

Kennedy is being completely consistent here. He, along with O'Connor, sided with the conservative majority in almost all of the Federalism cases a few years back.

It's Scalia and Thomas - who have turned their back on Federalism - in order to crush liberal laws - that should be shamed. Along with the liberals who are suddenly praising the virtues of Federalism, while they were ignoring them until recently.

aidan maconachy said...

I posted a comment on TED Kennedy above, while working on blogger links. It wasn't meant for this ANTHONY thread. It is cocktail hour so that's my excuse.

Eli Blake said...

What really makes it ironic is that the Supreme Court now largely mirrors the makeup of Congress and the country, with most people being hardcore on one side or the other (I am openly a hardcore Liberal, by the way).

Because of this divisiveness (and the country hasn't been this divided and polarized since at least the height of the Vietnam/civil rights era) moderates like Kennedy wield power way out of proportion to their numbers.

Simon said...

Eli:
"I am openly a hardcore Liberal, by the way"

Yes, I think we'd rather picked up on that. ;)