In the court's most significant nonunanimous cases, Chief Justice Roberts was in dissent almost as often as he was in the majority. His goal of inspiring the court to speak softly and unanimously seemed a distant aspiration as important cases failed to produce majority opinions and members of the court, including occasionally the chief justice himself, gave voice to their frustration and pique with colleagues who did not see things their way....How much is this a story of how a group of individuals related to each other? The Court knows it has a termful of cases to resolve, and it is natural to sort through difficult work this way. Eliminate the things you aren't going to work on seriously, get through the things you can resolve simply and by consensus, and take the longest to work through the most difficult problems where there is the most divergent opinion.
The term's early period of unanimity, during which cases on such contentious subjects as abortion and federalism were dispatched quickly, with narrowly phrased opinions, reflected agreement not on the underlying legal principles but rather on the desirability of moving on without getting bogged down in a fruitless search for common ground. This was especially so in the term's early months, when Justice Sandra Day O'Connor was still sitting but was counting the days until a new justice could take her place.
Once Justice O'Connor retired in late January, after Justice Alito's confirmation, and as the court moved into the heart of the term, some of the court's early inhibitions seemed to fall away. Yet when its most conservative members reached out aggressively to test the boundaries of consensus in the term's major environmental case, Justice Kennedy unexpectedly pushed back and left them well short of their goal.
But individuals matter, too. We got to see two new individuals on the Court, yet it is the role of Justice Kennedy that seems most prominent as we review the cases. That may seem odd, but it is not surprising. The center position deserves the most attention as we try to understand what happened in the most difficult cases. In the past, Justice O'Connor occupied that position along with Kennedy. Replacing O'Connor was a dramatic event, but once he took her seat, Samuel Alito made it less conspicuous, because he stayed fairly reliably with the conservative Justices. This put the spotlight on Kennedy. We're interested in the two new guys, but we're more interested in how the cases are decided, and that made Kennedy important. Did he, as Greenhouse writes, "push back," or did he simply continue to do what he's always done?
David Savage sums up for the L.A. Times, with the same unsurprising emphasis on Kennedy:
In the most divisive cases before the court in the term that just ended, it was Justice Anthony M. Kennedy who determined the outcome every time. In unpredictable fashion, he sided some of the time with the court's conservative bloc and some of the time with its liberals.Was his "fashion" "unpredictable" or was his fashion predictably centrist, making outcomes unpredictable? And isn't it entirely appropriate that the outcomes are unpredictable?