July 1, 2006

"So much for unanimity at the Supreme Court."

Tony Mauro zeroes in on what I think is the issue for summations of the Court's just-ended term:
A term that began with hope and at least limited evidence that a new era of consensus had begun dissolved in its final weeks into a blizzard of quarrelsome writing that clarified little and robbed some decisions of their precedential force. In some of the Court's most important rulings, justices tossed consensus aside and penned lengthy opinions, partial concurrences, and dissents that left readers crying "Uncle" or pleading, "Can't they all get along?"...

[N]o one seems to fault Roberts for failing to achieve that goal....

But the biggest factor in the demise of definitive decision-making in June may be Kennedy's central importance in the wake of O'Connor's departure....

"It's Justice Kennedy's world, and you just live in it," says Thomas Goldstein of Akin Gump Strauss Hauer & Feld. He adds that unlike O'Connor, when Kennedy casts a crucial vote, he tends to write -- either the main opinion or a separate concurrence....

Whereas O'Connor sought to "hammer out differences," says Cambridge University professor David Garrow, "Kennedy is more attracted to the sound of his own voice."
And what an exasperating voice it can be. It wouldn't be so bad having a centrist judge casting the deciding vote and articulating the moderate position that bridges the Court's two sides. The problem is that the statement of the position is so fuzzy and prolix.

6 comments:

Joe said...

It appears they will need to expand the Supreme Court building to contain Justice Kennedy's swelled head since O'Connor retired.

PatCA said...

I'm not an attorney, but it does seem like especially with the Hamdan ruling, the Court is pretty divided on these issues. Kinda like a judicial cage fight.

downtownlad said...

So Kennedy is now "moderate"? How the hell did that happen.

He was appointed by Reagan, he was considered one of the five "conservative" justices for a long-time.

Only now that we have extreme right-wingers like Scalia, Thomas, and Roberts on the Bench, does Kennedy suddenly become a "moderate".

His views haven't changed. It's the definition of "moderate" that has.

John Jenkins said...

downtownlad is right. Once Kennedy was appointed and labeled a conservative, the accuracy of that label is removed from debate: he is forever a conservative therefore moderate must have moved toward conservative. Brilliant!

Sanjay said...

Is that fuzziness part of the system? I'm not trying to be clever, I just don't know at all. What happens when you get handed something where you kind of know you have to rule on it but you're not real real sure what the judicially right course is? I guess presumably you regret taking the case in the first place! But, just askin' all you constituional scholars: how does a judge go about sayinfg, this is how it looks from here but, hey, future judges, please go ahead and think about overturning this?

SarahWeddington said...

Kennedy was never a real conservative. He was pretty good from 88 to 92. His votes in Webster, Croson, Cruzan, Metro Broadcasting, Rust v Sullivan and a few other cases were good.

After Casey and Lee v Weisman in 1992 he went downhill.

Quite frankly, the idea that he controls the court is sickening and should be frightening to every American, regardless of political views.