July 2, 2006

The story arc of the Supreme Court term.

It's the day for summing up the Supreme Court's just-ended term, the first with John Roberts as Chief, and Anthony Kennedy in full possession of the swing vote. Linda Greenhouse does the presentation for the NYT. I'm impressed by her ability to perceive a story arc in the train of individual cases:
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....

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.
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.

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?


DRJ said...

With some exceptions, Supreme Court cases should be predictable. The issues become more clear as the cases work their way up, and the Justices generally have philosophies that suggest how they will view most issues. Isn't it possible to predict how Thomas and Ginsburg will rule in many cases? Justices like O'Connor and Kennedy drive me crazy because no one, not even they, can predict where they stand.

Randy said...

I had no idea that I was no naive. Until now, I thought almost all cases made it all the way to the Supreme Court precisely because some aspect of them made their resolution unpredictable, otherwise they would have been easily taken care of by lower courts. Another "live and learn" moment, I guess.

Bob said...

I'm not a lawyer, just a layman. As such, I'd prefer predicability in the law, so I would know in advance what is legal and what is not. But of course, capital punishment can be legal one year and illegal the next. In fact, it sometimes seems like we have a new Constitution every morning when we wake up.

Ann Althouse said...

Bob: There are several different things going on.

1. The Supreme Court chooses its cases, so it will be taking the things that are currently unresolved. So the unclarity at the point the Court takes the case is a given.

2. Once the Court takes a such a case, if it's clear how all the Justices will vote, I'd be worried that ideology or political preference is what determines outcomes -- which would be bad. Thus, unclarity through the decisionmaking process is not a bad thing. Kennedy's the last justice we should criticize on this point.

3. When the case is decided, we can get a clear rule or an incomprehensible standard (or something in between). Here, there is strong reason to want clarity, and Kennedy can be a problem by hedging and writing evasively.

4. For some things, it can be better to avoid a clear rule and to decide a case on a narrow ground. If the centrist judge is good about seeing when this is the case, we benefit. Here, we're heavily dependant on Kennedy's good judgment.

5. People disagree a lot about how clear and broadly stated rules ought to be -- what falls into my point #3 versus #4. That is often what we are arguing about -- notably recently with respect to gerrymandering, where Kennedy has kept the litigation going by refusing to join with either faction of the Court.

SarahWeddington said...

Kennedy is a hack.

I pray every day for at least one more vacancy to open up so his can be made irrelevant and the Constitution can finally be rescued from the liberal morass that it has fallen into these past 45 years.

A court with Roberts, Scalia, Thomas, Alito and one more solid conservative like a Judge Easterbrook or a Judge Jones and the court will finally have been rescued from its liberal tormentors.

DRJ said...

Aalthough I agree with some Supreme Court opinions more than others, I respect all of the Supreme Court justices and I don't think they base their decisions on a political agenda (much). I do think they have values that impact their legal views, just as we all do. I also think they think logically and carefully (most of the time). Put this all together and most of the justices issue predictable decisions in the low-profile SCt cases. The high profile, politically explosive cases are a separate matter.

Overall, the mystery isn't what the result will be but how the Court's opinion will explain the result. That's where clarity matters, and unfortunately clarity has been sorely lacking for years. To me, what Chief Justice Roberts brings to the Court is the possibility of clear, consise opinions.

DRJ said...

... concise opinions ...

The sad thing is I actually previewed my comment.

Ann Althouse said...

"A court with Roberts, Scalia, Thomas, Alito and one more solid conservative like a Judge Easterbrook or a Judge Jones and the court will finally have been rescued from its liberal tormentors..."

I think that would torment liberals (and moderates) way too much. I hate to think how upset nearly everyone I know would be.

Randy said...


Hacks are by nature very predictable. Kennedy is neither.

DRJ said...

Internet Ronin,

Why do you say that "hacks are by nature very predictable"? Whatever your definition, would you describe any of the Supreme Court justices (other than Kennedy, whom you have already excluded) as hacks?

Sometimes the issues before the Court have been "easily taken care of" at the appellate level, but the appellate courts disagree. Many Supreme Court cases arise from conflicts among the appellate courts. Some of those conflicts may yield unpredictable results but there are rarely cases of first impression in which we have no clue how the Court will rule.

Overall, I don't see law as mysterious and I don't think it wouldn't be good for society if every decision seems so unpredictable that people believe they are the legal equivalent of rolling the dice.

Unknown said...

A court with five conservative justices would be amusing.

It's be entertaining to see inter-racial marriage bans go back into effect.

John in Nashville said...

Damn right Kennedy is a hack--as is each other supporter of the Bush v. Gore result. If there were a Hackery Hall of Fame, that decision would be the central exhibit.

SarahWeddington said...

Almost as amusing as it would be to see a liberal court impose Gay Marriage on the 50 states like they did abortion on demand or homosexual sodomy.

In a more serious vein, interracial marriage bans would never go into effect because of a thing called democracy. I have more respect for the voters than to believe such a law would pass. And if it did pass, I think it would shortly be repealed. Also, Loving is so settled and uncontroversial that even Bork himself would never overturn it.

Ann, with the results the liberals have given us for the last 40 years, no punishment is too much for them. I hope I see Ralph neas, Linda Greenhouse, Kate Michaelmann and Dahlia Lithwick in tears the day one of the liberals leaves. Hopefully sooner rather than later.

Eli Blake said...

I don't know, folks. I just ran across this post on Rum, Romanism and Rebellion that points out something about Scalia vs. Stevens. The post is about how Jon Kyl and Lindsay Graham used their (legal) right to 'revise and extend' their remarks to insert text into the debate on the Detainee Treatment Act after the debate had already occurred. Justice Stevens wrote in his footnote that the text was inserted after the debate had occurred. Justice Scalia, on the other hand, actually cited the text put in by Sens. Kyl and Graham.

So it was put into the record to deceive, and it deceived Scalia.

At best, that makes him look like a fool.

Unknown said...

Well Sarah - there's a difference between you and me.

I believe in more liberty and you believe in less.

Matt Cline said...

I believe in more liberty and you believe in less.

downtownlad: This black-and-white thinking should be a big clue that you're violently oversimplifying. Sarah's last comment had nothing to do with "believing in liberty".

It's not democratic for the Supreme Court to impose a policy on the nation -- even if that policy results in greater net liberty. Now, sometimes it's good for the SC to impose policies on the nation -- but it's good in spite of it being non-democratic.

Liberty is as much a decision-making process as it is a result.

Unknown said...

Since when is Liberty something that's to be decided by majority vote?

I thought it was a God-given right that no government can rightfully take away.

Stephen said...

"I believe in more liberty and you believe in less."

I'd like a vastly reduced federal income tax.

If the Supreme Court decided to declare one day that any tax over 5% is unconstitutional, that would be good for me, but I obviously wouldn't support it. A Supreme Court that can decide that on its own can just as easily set it at 80% the next day. If you're relying on the courts for freedom and conservatives get the SC and do something you don't like, what's your argument against them? Do you sit back and apply the same deference to decisions or do something else?


If you really think a Bush court would ban interracial marriages -are you willing to lay money on that?