The Volokh Conspiracy

A rather cursory look suggests that Kennedy has been situated in opposition to the judgment of the Court just twice, in Cunningham, in which he dissented and joined Alito's dissent, and United Haulers, in which he joined Alito's dissent. He has been in the majority/on the prevailing side 97.1% of the time; I can't imagine there to be any recent term in which any justice has so frequently appeared in the majority. Stevens, OTOH, has been in the majority is just 46 of his 71 cases; his in-the-majority total of 64.8% (and just 40% in non-unanimous cases!) is, by my count, the lowest of any justice in a single term since (at least) OT2000—I'm inclined to think that Stevens might have fallen below that mark in at least one of the 1997 and 1998 terms.

Question: does this mean that the dynamics of the court have conspired to make Justice Kennedy the most powerful official in the US government? He seems to enjoy a temporary unofficial office as the "last word on all close disputes".

It seems similar to the way that the dynamics of the electoral college and the 50-50 split in the national polity make the last 500 voters in the most closely divided battleground state the most influential voters. Just like a vote for the presidential election cast in Ohio has an inestimably greater chance of influencing the result of the election than one cast in Utah or California, a vote cast by Kennedy has a better chance of influencing the result of the court than one by Scalia.

The remarkable thing about this particular accomplishment is that it has almost nothing to do with Justice Kennedy's votes. If he switches his vote in a 5-4 case where he's in the majority, then . . . he's still in the majority! This statistic tell us only that the other eight Justices regularly split 4-4. Only when they split 5-3 is it even possible for Kennedy to be on the losing side of a 5-4 split. The other important statistic we'd need for context is the number of times Kennedy has been on the winning side of a 6-3 split.

Dave N: Roberts, Scalia, Thomas and Alito versus how often he sided with Stevens, Souter, Ginsburg, and Breyer (the usual two constellations in 5-4 votes).

Another interesting question is: how often are those the constellations?

Is he also batting 1.000 on having no discernable judicial philosophy?

Judicial philosophy is highly overrated, cf Rehnquist.