May 16, 2007

It's not the Kennedy Court it's the Roberts v. Stevens Court.

Jan Crawford Greenburg says people are wrong to focus on Justice Kennedy, despite his ability to tip the Court to one side or the other in tough cases. Greenburg portrays Stevens and Roberts in an epic struggle, and she says Roberts will win, and he will win because of Kennedy isn't the type to hold to the middle. He will be absorbed into the conservative group.

...Kennedy is not O’Connor.... He is perfectly willing to vote with conservatives nine times in a row—then vote with them a tenth—if that’s how he sees the case. He wants to be consistent. And when he decides on his position, he’s pretty comfortable there. Unlike O’Connor, he isn’t cautious. He doesn’t try to hold back the majority with a split-the-difference approach.

Kennedy also happens to be more comfortable with the conservative position than O’Connor ever was. In the battle for Kennedy, liberals are going to lose a lot more than they win...

On issues of race, Kennedy is never a swing vote. That’s as area—along with free speech--in which he’s been entirely consistent over the years. He opposes racial considerations and racial preferences much more so than O’Connor ever did....

Roberts realizes he’s presiding over a Court with just four judicial conservatives. But he surely must want to preside over a Court that functions as a Court—not one with a justice whose vote always is up for grabs and whose direction is set by that vote. That’s the position William Rehnquist found himself in with O’Connor. Lawyers wrote briefs and argued cases targeted at getting her vote. Roberts would say that’s bad for the law and bad for the Court—and I’d bet the other justices, including Kennedy, would agree.

Roberts is trying to shift the debate inside the Court. His position is that the Court--instead battling for one justice’s vote and swinging for the fences in the big cases--should take a more restrained and narrow approach.

If he could persuade the Court to write more narrowly, it would minimize Kennedy’s role. That would make the Court’s jurisprudence more coherent and clear, with better direction and guidance for lower courts and litigants.
If the Court ends up writing overly narrow decisions to rope in Kennedy, how is that minimizing his role? Or does Greenburg mean only that we won't notice his role the way we would if he provided a fifth vote with a concurring opinion that left the decision meaning very little, the way O'Connor so often did? And what's to prevent the Stevens side of the Court from using the same strategy and writing their side narrowly to win Kennedy's vote? Moreover how does the case law become "more coherent and clear, with better direction and guidance for lower courts and litigants"? If you resist stating the law in the form of rules of general applicability, how do you know how it applies in the next case? How would the Roberts v. Stevens struggle really play out? I'm picturing Roberts and Stevens competing over how narrowly they can frame the decision for the outcome they want and Kennedy coyly withholding his choice until he finds the precise narrow narrowness that piques his fancy. This picture strikes me as too absurd to believe. If I did believe it, though, it would give me absolutely no confidence that things would become coherent and clear.


Simon said...

It's Jan Crawford Greenburg. :)

Richard Dolan said...

"This picture strikes me as too absurd to believe."

Amen. Some reporters can't resist the urge to think about the SCOTUS as their own novel-in-process, and not a very good one at that. Ms. Greenburg offers a catchy little narrative about an "epic struggle" populated by midgets -- a judicial Lord of the Rings saga, as told by John Grisham -- focused on personality quirks and back-room maneuvers, the point of which is supposedly to permit CJ Roberts to "preside over a Court that functions as a Court." If her portraits of the justices are accurate, there's not much chance of that happening.

No doubt, the interpersonal dynamics among the justices is quite complex, and all of them have their own way of approaching constitutional issues. After all, that's part of the reason for having a 9-member court. But I don't have any confidence that this narrative, constructed as it is from distinctions (liberal/conservative, broad/narrow, comfortable/cautious) that are overworked and uninformative in context, has captured anything of importance about how the decision making process of the SCOTUS plays out.

As for the "restrained and narrow approach" she says Roberts is using to try to "shift the debate inside the Court," it's hard to tell what she's talking about. Judged by his opinions to date, Roberts has shown a knack for writing clear opinions that decide the issue on which the Court granted cert, and explain the reasoning behind his conclusion (and, if applicable, why he rejects the reasoning of another justice's opinion in the case). And then he stops. While that's a perfectly reasonable thing for a judge to do, Roberts didn't invent it as an approach to opinion-writing, and he's hardly alone on the SCOTUS in doing that. He's just very good at it. If he's been able to "shift the debate inside the Court" along the way, I don't think that result has come about because of any "epic struggle" of the sort Ms. Greenburg has conjured up.

vnjagvet said...

Judicial restraint in the Frankfurter tradition can be liberal or conservative, depending on what is being reviewed by the Court.

Writing a narrow decision, however, is not normally a feature of what is today considered by the professoriate and the legal press as the liberal wing of the Court.

If the Roberts technique described has the result of narrowing decisions from Justices Souter, Ginsberg, Stevens and Breyer, it will probably improve the jurisprudence of the Court from my perspective.

The Exalted said...

the court has produced unnecessarily narrow opinions for years, this is nothing new

Ann Althouse said...

Simon: Thanks. Corrected. I was posting without coffee!