Would the next report be that the sun rose in the east this morning? It never even occurred to me to wonder whether Justice Kennedy, who turns 74 next Friday, might be thinking about retiring, because the answer is so clearly no. The man obviously still loves his job after 22 years, and has no reason to leave it.
But thinking about Anthony Kennedy led me to look back over the Supreme Court term that ended last month, and what I found surprised me. A plausible case can be made that it is no longer the “Kennedy court.”
That label has been applied to the Supreme Court for the last few years, including by me. It reflected the fact that on a polarized court, with two blocs of four justices reliably taking opposite sides in any case with a hint of ideological content, the majority in important cases turned out to be wherever Justice Kennedy was. In the 2006-2007 term, the first full term after Justice Sandra Day O’Connor’s retirement, the court decided 24 cases by votes of 5-to-4, and Justice Kennedy was in the majority in all 24.
But during this past term, Justice Kennedy was in dissent in 5 of the 18 cases decided by five-vote majorities (a figure that amounts to one-quarter of the 73 cases decided with signed opinions, down from 31 percent in the previous term and 40 percent in the term before that.) Three justices to Justice Kennedy’s right, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., all cast fewer dissenting votes in those close cases (three, three and four, respectively) and Chief Justice John G. Roberts Jr. was tied with Justice Kennedy at five.
Those are admittedly fine distinctions from a small sample, but I would argue that it’s the trend that counts. Justice Kennedy no longer appears to reside at the court’s center of gravity. The center has shifted to the right.
(I should note here that while Supreme Court statistics are widely available on the Internet, including from the estimable Scotusblog site, the numbers I use are my own, and may not always agree with others’. There are a surprising number of judgment calls that go into Supreme Court vote-counting, such as how to count a concurring opinion that agrees with the particular outcome — as Chief Justice Roberts did in a case striking down life sentences without parole for juvenile offenders convicted of crimes other than murder — while rejecting the rationale that the majority will apply in future cases. After some pondering, I decided to count the chief justice’s vote in that case, Graham v. Florida, as a dissent, and to consider Justice Kennedy’s majority opinion as a 5-to-4 rather than 6-to-3 win for the court’s liberal bloc. I also count the term’s big patent case, Bilski v. Kappos, as 5- to-4 for its splintered reasoning, although as a technical matter the judgment was 9-to-0.)
Of course, what really counts is what Justice Kennedy voted for and against. Of the 18 cases decided by five-member majorities, 12 can be considered at least somewhat ideological. These included Citizens United v. Federal Election Commission, freeing corporations and labor unions to spend money on behalf of candidates in federal elections; Berghuis v. Thompkins, making it easier for the prosecution to show that a suspect had waived his Miranda rights; and Salazar v. Buono, enabling the government to keep a Christian cross standing on top of a hill on the Mojave National Preserve.
Justice Kennedy wrote the majority opinions in all three of those cases. He voted a total of 10 times with the conservative bloc in the 12 ideological cases. Compare that with the previous term, during which he gave the liberal bloc his vote in 5 of 17 close and ideological cases; during the term before that, 2007-2008, he voted fully half the time in such cases with the liberals. This term, it was only twice.
In one of those two cases, he wrote the majority opinion declaring that a sentence of life without parole for a juvenile convicted of a non-homicide offense was categorically unconstitutional as a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. “Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope,” Justice Kennedy wrote.
In the second case, he joined Justice Ruth Bader Ginsburg’s majority opinion upholding a public law school’s refusal to grant official status to a student religious group that excludes those who engage in “unrepentant homosexual conduct.” His concurring opinion in that case, Christian Legal Society v. Martinez, was in some respects broader than Justice Ginsburg’s majority opinion. Justice Kennedy went beyond the somewhat murky facts to give his thoughts about life in law school, where “speech is deemed persuasive based on its substance, not the identity of the speaker.” He declared: “A vibrant dialogue is not possible if students wall themselves off from opposing points of view.”
Those two opinions were vintage Anthony Kennedy: he embraces whichever side he is on with full rhetorical force. Much more than Justice O’Connor, whose position at the center of the court fell to him when she left, Justice Kennedy tends to think in broad categories. It has always seemed to me that he divides the world, at least the world of government action — which is what situates a case in a constitutional framework — between the fair and the not-fair.
Affirmative action policies are not fair — he has never voted to uphold one — because, in his view, they victimize those who bear no fault, such as the white applicant with higher test scores. Laws designed to bar gay men and lesbians from achieving their goals through the political process are not fair (he wrote the majority opinion striking down such a measure in a 1996 case, Romer v. Evans) because “central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.” The restrictions on corporate speech in the McCain-Feingold campaign finance law were not fair because the First Amendment does not abide discrimination among speakers.
In a book titled “Justice Kennedy’s Jurisprudence,” a political scientist, Frank J. Colucci, wrote last year that Justice Kennedy is animated by an “ideal of liberty“ that “independently considers whether government actions have the effect of preventing an individual from developing his or her distinctive personality or acting according to conscience, demean a person’s standing in the community, or violate essential elements of human dignity.” That is, I think, a more academically elegant way of saying fair versus not-fair.
So the challenge for anyone arguing to Justice Kennedy in the courtroom, or with him as a colleague in the conference room, would seem to be to persuade him to see your case on the fair (or not-fair, depending) side of the line. Maybe as a justice Elena Kagan will be able to work her magic as she did with the fractious Harvard Law School faculty. But a junior justice, unlike a law school dean, has no inducements to offer, and Justice Kennedy is a tough man to persuade, as other justices have learned.
The notion of a “Kennedy court” rested on the assumption that Justice Kennedy’s vote was in play, at least most of the time, that the boundary separating liberals and conservatives on the court was at least theoretically permeable and that he was willing to cross it. If that is no longer, or hardly ever, the case, then whose court is it?
Here is a final set of numbers suggesting that the most accurate description of the Supreme Court today is that it is a court securely in the collective hands of its five most conservative members. Chief Justice Roberts and Justices Scalia, Thomas, Alito and Kennedy collectively dissented during the past term a grand total of only 39 times, averaging 7.8 dissents per justice over the course of a term that produced 73 decisions. The four others — Justices Ginsburg, Stephen G. Breyer, John Paul Stevens and Sonia Sotomayor — dissented 78 times, for an average of 19.5 dissenting votes per justice.
Of course Justice Kennedy isn’t going to retire — not when he is on the winning team.