...Kennedy is not O’Connor.... He is perfectly willing to vote with conservatives nine times in a row—then vote with them a tenth—if that’s how he sees the case. He wants to be consistent. And when he decides on his position, he’s pretty comfortable there. Unlike O’Connor, he isn’t cautious. He doesn’t try to hold back the majority with a split-the-difference approach.If the Court ends up writing overly narrow decisions to rope in Kennedy, how is that minimizing his role? Or does Greenburg mean only that we won't notice his role the way we would if he provided a fifth vote with a concurring opinion that left the decision meaning very little, the way O'Connor so often did? And what's to prevent the Stevens side of the Court from using the same strategy and writing their side narrowly to win Kennedy's vote? Moreover how does the case law become "more coherent and clear, with better direction and guidance for lower courts and litigants"? If you resist stating the law in the form of rules of general applicability, how do you know how it applies in the next case? How would the Roberts v. Stevens struggle really play out? I'm picturing Roberts and Stevens competing over how narrowly they can frame the decision for the outcome they want and Kennedy coyly withholding his choice until he finds the precise narrow narrowness that piques his fancy. This picture strikes me as too absurd to believe. If I did believe it, though, it would give me absolutely no confidence that things would become coherent and clear.
Kennedy also happens to be more comfortable with the conservative position than O’Connor ever was. In the battle for Kennedy, liberals are going to lose a lot more than they win...
On issues of race, Kennedy is never a swing vote. That’s as area—along with free speech--in which he’s been entirely consistent over the years. He opposes racial considerations and racial preferences much more so than O’Connor ever did....
Roberts realizes he’s presiding over a Court with just four judicial conservatives. But he surely must want to preside over a Court that functions as a Court—not one with a justice whose vote always is up for grabs and whose direction is set by that vote. That’s the position William Rehnquist found himself in with O’Connor. Lawyers wrote briefs and argued cases targeted at getting her vote. Roberts would say that’s bad for the law and bad for the Court—and I’d bet the other justices, including Kennedy, would agree.
Roberts is trying to shift the debate inside the Court. His position is that the Court--instead battling for one justice’s vote and swinging for the fences in the big cases--should take a more restrained and narrow approach.
If he could persuade the Court to write more narrowly, it would minimize Kennedy’s role. That would make the Court’s jurisprudence more coherent and clear, with better direction and guidance for lower courts and litigants.