Justice Kennedy Swinging Left?

One of the questions I had going into this most recent Supreme Court term was the effect that Justice O’Connor’s impending departure would have on Justice Kennedy. While O’Connor was on the Court, she and Justice Kennedy were universally identified as the key swing justices, but the label was far more appropriate for O’Connor than it was for Kennedy. In the 136 5-4 cases in which the Court’s (more) liberal bloc held together during the period between OT1993 and OT2004, Justice O’Connor supplied the “liberals” with a fifth vote far more frequently than Justice Kennedy (32 times compared with Justice Kennedy’s 17). It goes without saying that the voting pattern of both O’Connor and Kennedy remained decidedly conservative during this period, since the (more) liberal bloc, unable to attract either of the swing justices, lost most of those 5-4 cases.

Following the Court this past term, I developed the impression that Justice Kennedy was swinging to the left more than he had in the past. But I did not try to put a number on that gut feeling until the term ended. Looking at the OT2005 statistics compiled by Tom Goldstein and his crew and by Georgetown, there’s some interesting evidence that Justice Kennedy might be shifting his voting pattern a bit.

During the 1993-2004 period mentioned above, Justice Kennedy provided the fifth vote to the more liberal four only 12.5% of the time. During this past term, however, that number increased (by my count) to almost half (5) of the (12) close cases where the four liberals held together against the conservative justices (Rapanos, LULAC, Randolph, Hamdan, and House — did I miss any?). And in Clark v. Arizona, Justice Kennedy dissented with Justices Stevens and Ginsburg against a majority consisting of Roberts, Scalia, Thomas, Alito, and (doh!) Souter.

This is obviously too small a sample size to make any generalizations, but it will be interesting to see whether the trend continues next term. Still, there seems to be some reason to hope that Kennedy might pick up some of the slack left by O’Connor’s departure. I don’t want to make too much of this, though. Justice Kennedy still sides with his more conservative bretheren most of the time. And, as Rapanos shows, he can be stingy with his fifth vote, which means that when the more liberal justices win, the victories are likely to be incremental at best.

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1 Response

  1. Lunch-break Winfield says:

    Prof. Penalver,

    As you say, “Justice Kennedy still sides with his more conservative bretheren most of the time.” For this reason, focusing on Justice Kennedy seems, to me, mistaken. The votes of the other liberals most often correlate to Souter; the votes of the other conservatives, including Kennedy as a conservative, most often correlate to Alito. Thus, this is the Souter-Alito Court, not the Kennedy Court. As the example of Clark v. Arizona illustrates, if one has Souter and Alito, one can obtain a viable majority without Kennedy.

    Looking forward to the book.