When the Roberts Court Turns Into the Kennedy Court: End-of-Term Thoughts
By my watch it’s fifty-five hours since the final decisions of the Supreme Court’s October 2006 Term, and it already feels late to be weighing in. Some clichés are important enough to repeat: the pace of analysis, spin, and critical consensus is radically different from what was possible even ten years ago. As one of my former philosophy profs (a Heidegger fan) observed, the Internet is an ontological change.
What kind of Court do we have? Start with Andrew Siegel’s excellent “Meet the Roberts Court” at PrawfsBlawg (written before the school cases came down). Then modify it with Lyle Denniston’s “The Impact of Fervent Dissent,” (written after the school cases). The result, I think, is the best current working model of the Supreme Court.
In the general run of cases, it is the Roberts Court. As Prof. Siegel suggests, the addition of Justice Alito to form a five-Justice working majority has put the “Reagan Justice Department … firmly in control,” limiting and distinguishing Warren and Burger-era precedents. Justice Kennedy is still the swing vote in these cases, but he seems to treat them as “normal science” (to use a Kuhnian distinction that I find oddly helpful re: Kennedy). He will ordinarily agree with the Chief Justice and Justice Alito, or stake out a position in conventional legal terms that comes close to theirs. This is very significant, because the cases in this category are not merely “small” cases — they encompass some of the most important things the Supreme Court does. Enforcing habeas deadlines, refusing to extend the Establishment Clause standing exception, adopting relatively pro-business interpretations of statutes such as Title VII. It adds up. But these cases fall below the threshold of drawing widespread attention from the non-lawyer media and the public. They are not lead stories on CNN.
In the really big cases — the CNN cases — it’s the Kennedy Court.
And here Kennedy switches to a judicial persona that I think of as his “revolutionary science” mode. He evokes philosophical abstractions; he moralizes. Even many conservatives frustrated by this approach would be hard-pressed to claim that Kennedy’s rhetoric always leaves them cold. Think of the final section of Kennedy’s dissent in Hill v. Colorado, which both pro-life citizens and First Amendment stalwarts may find personally moving, as I do.
Sometimes this Justice Kennedy writes opinions like Lawrence v. Texas. Often, he splits the difference. As Lyle Denniston suggests, in the big cases he seems quite sensitive to the prospect that his work will meet with moral disapproval from the left. The biggest decision of the Term — in the school case, PICS v. Seattle – was also the only one in which Kennedy did a full-blown “O’Connor”, watering down the conservative plurality opinion with an opaque, separate concurrence that agonizes over the competing interests and then declines almost every bright line that the plurality seeks to draw. Schools can use race sometimes — more than the Chief Justice says — but not here. The distinction between de jure and de facto segregation is very important — but sometimes it can become blurred. Etc. Stuart Taylor’s friend had a point when he groused, “Every sentence in [Kennedy’s] opinion contradicts the sentence before it.” Lots of future litigation can be expected in this area of law. And there will be more blockbuster cases in which the Roberts Court turns into the Kennedy Court, tantalizing and frustrating conservatives.
There’s an irony here. The elevation of Chief Justice Roberts and Justice Alito would not have been possible without a base of grassroots conservatives who are principally motivated by a desire to secure the overturning of the landmark “culture war” decisions of the Warren and Burger Courts, Roe above all. They’ve made political common cause with business interests, law & order types, and the other elements of the modern Republican coalition. You might say we’ve arrived at a point where the other coalition elements can conclude their issues are in pretty consistently good shape at the Court. They fall within the category of “normal science” cases, Roberts Court cases (though the death penalty is a notable exception). But the grassroots populists who have made the whole thing possible remain in suspense, guessing which way Justice Kennedy will jump in the next blockbuster case to come before the Kennedy Court. They need another conservative appointment before they will be able to satisfy their aims.