As if Justice Kennedy did not wield enough influence on the Supreme Court’s decisions already, SCOTUSBlog’s Lyle Denniston explains why Justice Stevens’ retirement is likely to increase the swing justice’s effect on the Court. This is so for two reasons. First, Justice Stevens’ retirment means there are only two justices on the Court with seniority over Justice Kennedy — Scalia and the Chief Justice. As a consequence, Justice Kennedy will be the assigning justice more often than in the past, particularly where he joins the Court’s liberal justices and the conservatives dissent. Second, Justice Stevens was particularly effective at wooing Justice Kennedy — and could use his power to assign majority opinions to himself or Justice Kennedy — to keep Justice Kennedy on board in close cases. In Justice Stevens’ absence, it’s not clear what other justice can play this role. As Denniston explains, “There is, at present, no other member of the Court’s liberal bloc likely to match Stevens’ ability to persuade a sometimes-reluctant Kennedy to join with that bloc in a closely divided case. If Kennedy is to vote for liberal outcomes, it may well have to be more of a personal choice than it has seemed to be up to now.” This is significant because in cases like Boumediene and Massachusetts v. EPA, it appears that Justice Stevens was able to sway Justice Kennedy to forge a liberal majority.
Case3L says:
Might Kennedy be more likely to join the liberal voting bloc now that he has seniority in that group? If a case comes around that he feels strongly about, he may be more likely to vote with the liberal bloc in order to assign the opinion to himself. I can see this happening on cases where he may think the creation of a framework for dealing with an issue is more important than the actual result of the case.
April 10, 2010, 10:01 amAnonsters says:
My favorite Kennedy quote of the moment, explaining how being a Supreme Court justice differs from being a judge on the Circuit Court:
My favorite quote about Kennedy, from a law school professor describing a concurring opinion by Kennedy in one of the redistricting cases:
April 10, 2010, 10:08 amDave Lloyd says:
Jonathan,
What exactly do you mean by “liberal outcomes”? Decisions supported only by the (soon to be) 4 Democrat appointees? Or something else?
April 10, 2010, 10:09 amSara says:
The facile thing about this analysis, in addition to being based on supposition is: 1) Is Kennedy a child? and 2)Is the CJ so clueless that he does not try to woo Kennedy with assignments and the like?
April 10, 2010, 10:11 amAnonsters says:
Yes, and Justice Stevens is, apparently, his daddy.
April 10, 2010, 10:18 amSara says:
Or maybe Daddy Stevens uses a little Chicago style persuasion.
April 10, 2010, 10:28 amruuffles says:
How many 5-4 significant conservative victories were written by Kennedy? Gonzales v Carhart, Citizens United, Ricci.
OTOH, you have Kennedy opinions like Roper, Kennedy, Caperton, Romer, Lawrence, Boumediene.
April 10, 2010, 10:36 amOrenWithAnE says:
Kennedy’s clerks are in for a very rough year.
April 10, 2010, 10:54 amJonathan H. Adler says:
Mr. Lloyd –
That phrase — “liberal outcomes” — is in the quote from Lyle Denniston’s post. I don’t want to speak for him, but I took that to be short-hand for outcomes in divided cases that we would conventionally consider to be “liberal” in contemporary politics and supported by the four liberal justices.
JHA
April 10, 2010, 11:13 amRoscoe says:
Wow. I know I am being both naive and simplistic, but does anyone think the framers imagined that, 200 years later, critical issues related to the power and structure of government would be decided based on who best could appeal to the vanity of a single 70+ year old guy, who was never elected to anything and can never be fired.
April 10, 2010, 11:49 amTNeloms says:
If they didn’t imagine it, they weren’t thinking very hard about what they were creating. I mean, they definitely could imagine that critical issues would be decided by a guy who was never elected to anything and could never be fired, since that’s the system they set up. Were judges in the 1700′s not swayed by vanity, empathy, personal biases, and other considerations that aren’t strictly based in law?
April 10, 2010, 12:21 pmPeteP says:
There is indeed hope. Obama is going to almost have to , in effect, move the court ‘right’, even by appointing a liberal who will in effect be Stevens-redux, no matter how much he would like to do the opposite ! :-)
April 10, 2010, 12:33 pmOhReginaldIDisagre says:
Too naive and simplistic, so I’ll respond in kind with naivete and simplicity as well. Congress has continuously expanded the powers of the Federal government for 200+ years. Thus, there are a lot more issues requiring judicial “oversight”. Did the framers envision Federal expansion at to the detriment of the states, bringing even more cases and controversies before them? As the Executive and Legislative branch’s expand, so to the judicial branch expands in kind, lest it is not a co-equal branch of the government anymore. Besides, doesn’t the Supreme Court strain to ensure its opinions conform to the past 200 years of Supreme Court decisions?
We could always amend Article III…
April 10, 2010, 12:39 pmRoscoe says:
TNeloms – I think that in the 1780s nobody had any idea that the courts were going to exercise as much power as they do today. When the Constitution was passed it wasn’t even certain that the Supreme Court had the right to strike down laws as unconstitutional. The first exercise of this power wasn’t until 1803. I think it telling that in Marbury the Court tested this power on a law that it was charged with enforcing, ensuring that its decision could not be ignored.
April 10, 2010, 12:40 pmDjDiverDan says:
Amen to that. I seriously doubt the utility or accuracy of describing Justices as “liberal” when, in both Citizens United and Heller, those Justices would have, had they been able to gather a majority, seriously eroded the liberties guarantied by the First Amendment (in Citizens United) and the Second Amendment (in Heller). Similar criticism can be made with respect to these “liberal” Justices restrictive view of the Sixth Amendment confrontation clause. If you ask most non-lawyer Americans just what makes a Justice “liberal”, they would accept the premise that a “liberal” Justice fights to protect civil liberties; apparently, at least for our current crop of “liberal” Justices, that is only true for civil liberties created by judicial fiat (like the right to abortion), but not to liberties actually listed in the text of the Constitution.
April 10, 2010, 1:55 pmerp says:
I can’t decide if Obama’s regained cockiness will result in his nominating someone from the far left or someone more moderate and then just crow about it as if it’s another big win. OTOH nominating Anita Hill’s lawyer might make some points with the ladies who haven’t been happy with his lukewarm support of gay marriage.
April 10, 2010, 2:48 pmneimoller says:
i think you miss the point: by definition, anybody that obama appoints belongs to the far left.
April 10, 2010, 3:13 pmDon Wood says:
I think we are smart enough to understand without making linguistics arguments what liberal and conservative SC decisions are. When the media reports a 5-4 decision, they ALWAYS add that it was a “partisan” decision. (Bush v. Gore, et. al.) And when a left-leaning or right-leaning SCJ “breaks ranks” with his/her respective bloc, it is always highlighted in the media, especially if it is a conservative SCJ voting against his judicial tendencies. So how does a thinking man ignore the partisanship? They are nominated expressly for the reason that their judicial philosophies reflect the overall governing philosophies of the Chief Executive. Elections have consequences.
April 10, 2010, 3:25 pmerp says:
neimoller, there’s the far left and then there’s the lunatic fringe.
I can’t wait to find out who the nominee will be to learn just how even more delusional our dear leader has become since his stunning victory in the make-work-for-the-SEIU health insurance scam.
s/off
April 10, 2010, 3:56 pmJohn Paul Stevens to retire; Obama gets second Scotus pick | The Political Fish says:
[...] analysis of the internal dynamic and the shift that will take place due to Stevens retirement, via Jonathan Adler from Volokh. But Kennedy also will no longer be an object of Justice Stevens’ efforts to marshal a majority [...]
April 10, 2010, 4:04 pmneimoller says:
i guess i will amend my statement to the following: by definition, anybody obama appoints belongs to the lunatic fringe.
April 10, 2010, 4:17 pmleo marvin says:
That sounds more Morgenbesser than Kennedy. Either way, it’s pretty good.
April 10, 2010, 7:12 pmBeldar says:
Souter, a reliably liberal but uninfluential vote, was replaced by the Sotomayor, likely to be the same. Stevens will surely be replaced by someone reliably liberal. But Dennniston has an excellent point regarding the likelihood that Stevens’ reliably liberal-voting replacement won’t be able to match him as a persuader. Kennedy is unlikely to be persuaded by any mere circuit judge elevated to the SCOTUS, much less by a mere solicitor general or ex-MA governor. Someone who’s a star from another discipline, though, might affect Kennedy more profoundly. Sunstein? Even (gasp) Hillary? I’m more inclined to think the former would be persuasive than the latter.
Still, while this is the sort of strategic thinking Obama OUGHT to be doing, I doubt he will actually pick on new Justice based on this consideration. Even as a law student and a lawyer, Obama was a politician. He’s going to make a political choice, not a jurisprudential one. So long as the vote is reliably liberal on all the Dems’ key hot-button issues, in other words, then identity politics will trump strategy.
April 10, 2010, 7:33 pmerp says:
neimoller, I believe you are right. The lunatic fringe it is! Do you have a candidate in mind?
April 10, 2010, 8:20 pmAnonsters says:
Hey, get it from the man himself, at 1:34 in the video. I slightly paraphrased (“You don’t have the luxury of equivocating.. much.”)
April 10, 2010, 8:25 pmbyomtov says:
JHA,
Justice Stevens was particularly effective at wooing Justice Kennedy — and could use his power to assign majority opinions to himself or Justice Kennedy — to keep Justice Kennedy on board in close cases. In Justice Stevens’ absence, it’s not clear what other justice can play this role.
You mean Stevens could promise Kennedy that if he voted with Stevens he wouldn’t have to write the opinion?
More seriously, I don’t follow the point here. Why would Stevens’ power to assign the opinion matter so much, given that now Kennedy himself will have that power if he disagrees with Roberts and Scalia?
April 10, 2010, 10:06 pmZac Efron For The Supreme Court — Hillary Is 44 says:
[...] of the concerns Obama Hopium guzzlers are whining about is the lost influence of Justice Stevens on his fellow Justices: “As if Justice Kennedy did not wield enough influence on the Supreme Court’s decisions [...]
April 11, 2010, 5:13 pm