This is an idea that I’m going to do a series of posts on because I’m thinking about the topic for an article. Let’s start with this question: Suppose Judge Garland is confirmed to the Supreme Court. Who would then be the swing justice in ideological cases? The answer, I submit, is nobody. In any given case it could be Garland, Breyer, Ginsburg, Kagan, or Sotomayor. And I think this will be a good thing.
We have lived for a generation in a world where there was clearly a swing justice. For the past ten years it’s been Justice Kennedy. Before that it was Justice O’Connor and sometimes Justice Kennedy. Before that it was Justice Powell. You’d have to go back to the mid-1970s to find a time where there wasn’t a single person who played this pivotal.
The rise of the swing Justice did considerable damage to constitutional law. First, it gave too much power to that one person. Second, briefs and opinions were unduly influenced by the idiosyncratic views of that person rather than by the doctrine. (Obergefell is a good example.) Both of these effects undermined the rule of law within the Court.
Moreover, the notion of a swing Justice is a distinctly modern one. Until the 1930s, nobody would have understood that idea because the Court operated much more by consensus. Indeed, my research suggests that the term was even used until the 1960s. More on that another time.