[A] key to understanding Kennedy's role as a swing voter is simpler: He just really, really likes the power. In his book Closed Chambers, Edward Lazarus, a former clerk for Justice Harry Blackmun, writes that Kennedy bragged about his ability to occupy one of the pivotal positions on the court, deliberately and craftily espousing views at conference that would make him a "necessary but distinctive fifth vote for a majority." Like O'Connor, Kennedy may be a legal politician before he is an ideological purist. And with O'Connor soon to be out of the picture, Kennedy may now get the chance to really make some constitutional hay.How much will Kennedy be affected by knowing that we think Roberts will influence him? On New Year's Eve, responding to a commenter who opined that Kennedy will control the Court, I wrote:
All of which raises another question now bandied about by hard-core court-watchers: What will happen when the good-natured and temperate Chief Justice Roberts begins to work his twinkly charm on Kennedy? Is it possible that while Scalia's insults helped push the conservative Kennedy toward the left, the tractor beam of Roberts' niceness may pull him back into the fold? That's certainly the hope of the political right. But if today's opinion in Gonzales is a harbinger of things to come, Roberts has some fairly heavy-duty twinkling ahead of him.
Even though I've said things like this myself, I think it underestimates the intellectual and charismatic powers of the new Chief Justice. So I want to make a different prediction for what 2006 will be like for the Supreme Court: Kennedy will work with John Roberts to forge a newly coherent moderate-conservative position. The project of creating an articulate moderate position will be so compelling and promise such benefits that Stephen Breyer will contribute his formidable skills, and we will see the era of fragmented, ad hoc decisionmaking come to an end.Of course, that's prediction melded with hope. I hate to think the justices craft idiosyncratic positions to gain attention and power. Majority opinions that clearly articulate legal doctrine are too important. If Lazarus's characterization of Kennedy were true -- and I can't say that it is -- we should be bitterly critical of him.
But we should see that there are legitimate ways judges analyze legal issues that will situate them in the middle. You can be a faithful judge without being what Litwick calls an "ideological purist." And the opposite of "ideological purist" is not "legal politician." In fact, the "ideological purist" may well be too much of a "legal politician."