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Kent Greenfield

Kent Greenfield

Posted: April 12, 2010 01:37 PM

Here's a Scary Thought: Anthony Kennedy Is Now the Leader of the Court's "Liberal" Wing

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Most commentators have been saying that the Court will not change much upon the retirement of John Paul Stevens, because Obama's pick will simply fall into the liberal slot that Stevens vacates.

But make no mistake: the Supreme Court just took a turn to the right regardless of the identity of Obama's nominee.

Stevens has been the leader of the so-called "liberal" bloc on the Court for the past 16 years. He has had disproportionate influence on the Court not only because of his stellar intellect and affable demeanor, but also because of his seniority. Since 1994, when Harry Blackmun retired, Stevens has been senior associate justice, sitting at the right hand of the Chief (either William Rehnquist or John Roberts) in oral arguments.

The most significant perk of his seniority is not seating position. The most important power is the authority to assign writing assignments of opinions. Court rules dictate that whenever the Chief is in the majority, he decides which justice writes the opinion. When the Chief is not in the majority, the senior-most justice in the majority assigns the writing chores. For the past 16 years, that has usually been Stevens, since in the most difficult and controversial cases he has been on the opposite side from Rehnquist or Roberts. So when the "liberal" wing had five votes, Stevens assigned the opinion. When the conservative wing had five votes, Rehnquist or Roberts has assigned.

Stevens has used this power to good effect in some pivotal cases. Most controversial questions hang on the vote of Anthony Kennedy, who usually votes with the conservatives but can sometimes be convinced to vote with the liberal bloc. When a victory for the liberals hinged on cementing what might be a tenuous vote from Kennedy, Stevens did the smart thing: he assigned the opinion to Kennedy. Kennedy would then write an opinion that he was sure to vote for.

The cost of such a strategy is that Kennedy is known for puffed up prose, but not for tight analytical structure. In Lawrence v Texas, for example, Stevens assigned Kennedy the opinion for the Court striking down the Texas law making gay sex a crime. In doing so, Kennedy did not articulate a clear standard of review for such statutes, and instead argued that the Texas statute conflicted with the "right to define one's own concept of existence, or meaning, of the universe, and of the mystery of human life." The others who joined that opinion -- especially the tough intellects of Stevens and David Souter -- must have winced at that loose language. But they knew that they had to give Kennedy a wide linguistic berth to secure his vote.

Another example was the 2008 case where Stevens cobbled together five votes to allow Guantanamo detainees to file habeas petitions in federal courts. Again, Stevens assigned the opinion to Kennedy. The final opinion avoided some issues and did not go as far as Stevens probably would have liked. But again, securing Kennedy's vote was worth the cost.

So what happens now that Stevens is gone? Power abhors a vacuum, so it's worth asking who will likely see their power increase.

The most senior associate justice will now be Antonin Scalia. But his power will not grow meaningfully, since he and Chief Justice Roberts will rarely disagree. Roberts will continue to assign majority opinions when the conservative bloc controls five votes.

The most senior justice who is reliably a member of the liberal bloc is Ruth Bader Ginsburg, but she is only fifth in terms of seniority. It will be rare indeed for her to be the senior-most justice of a five-vote majority. (That would only happen if Samuel Alito votes with the liberals and Kennedy votes with the conservatives.) When the liberals are losing, she will often be the most senior of the four dissenters and will thus assign who writes the "lead" dissent. She may end up taking on more of those opportunities herself. She is not known as an aggressive writer, however. She tends to urge opinions that decide cases on grounds as narrow as possible.

So the justice who will now assign the opinions when the "liberals" get five votes? Anthony Kennedy.

This is troubling. Justice Kennedy is a deeply conservative person, voting with the conservative bloc on issues of federalism, affirmative action, criminal procedure, and campaign finance. He most recently authored the Citizens United opinion, which President Obama rightly criticized in his State of the Union. In fact, a recent study showed that Kennedy is one of the 10 most conservative justices to sit on the Court since 1937. (Clarence Thomas is the most conservative, with Antonin Scalia, Roberts, and Alito close behind.) It is a measure of how conservative the Court itself has become when Kennedy is in its ideological middle.

If court watchers are correct that Stevens's influence on Kennedy was significant, then liberals have something to worry about. Going forward, the success of the liberal bloc will turn on whether one of its members -- Ginsburg, Stephen Breyer, Sonia Sotomayor, or the new nominee -- will be able to influence Kennedy without the benefit of seniority or the power of assigning opinions.

But absent such charismatic and intellectual leadership, it is more likely that Kennedy will default to his conservative bearings. And if that happens, the liberals will lose even more often than they already do.

I am afraid that it will not be long before progressives look back to the present Court, as bad as it is, with longing and wistfulness.