It’s Justice Kennedy’s World, and We’re All Just Living in It
Now that the Supreme Court has issued its last opinions of the term, it’s time to change the closing line of the Pledge of Allegiance to “one nation, under Justice Kennedy, indivisible, with liberty and justice as he sees fit.”
While many Americans have celebrated Justice Kennedy’s historic opinion in the same-sex marriage case, they’ve largely ignored the fact that the single most important operating principle in law these days appears to be: “What Justice Kennedy wants, Justice Kennedy gets.”
This was hugely apparent over the past month. The Supreme Court decided 26 cases. Justice Kennedy dissented just once: in the case that allowed Texas to refuse to issue Confederate flag license plates— the rare 5-4 decision that had Justice Thomas joining the liberal justices.
Otherwise, as Justice Kennedy goes, so goes the Supreme Court. Take a look at the last few days of Supreme Court decisions as proof:
—Affirming Obamacare’s tax subsidy arrangement: Justice Kennedy was in the 6-3 majority, joined by Chief Justice Roberts and the court’s four liberals.
—Allowing discrimination claims under the Fair Housing Act without alleging intent: Justice Kennedy wrote the 5-4 opinion, with the four liberals joining him.
—Finding a three-strikes conviction unconstitutional because the statute was vague: Justice Kennedy was in the 8-1 majority, with only Justice Alito dissenting.
—Finding a constitutional right to same-sex marriage: Justice Kennedy wrote the 5-4 opinion, with the four liberals joining him.
—Striking down Clean Air Act regulations of coal plants: Justice Kennedy was in the 5-4 majority, with the court’s four conservatives joining him.
—Upholding Arizona voters’ attempt to prevent partisan gerrymandering: Justice Kennedy was in the 5-4 majority, with the four liberals joining him.
—Approving drugs used to carry out the death penalty: Justice Kennedy was in the 5-4 majority, with the four conservatives joining him.
And late Monday, in a preliminary decision that does not necessarily indicate what the court will ultimately do in the case, Justice Kennedy again joined the court’s four liberals to temporarily halt the implementation of Texas’ draconian abortion regulations that would have closed all but seven clinics in the state.
The court’s liberals and conservatives shift from majority to dissent over the course of the various cases, but Justice Kennedy remains victorious almost every time.
Justice Kennedy is used to this position. Since October 2010, the court’s composition has remained consistent. In that time, there have been 83 cases that have split the court 5-4. Justice Kennedy has been in the majority in those cases a whopping 84 percent of the time; no other justice has been in the majority more than 61 percent of the time. In fact, the other eight justices are loosely clustered around 50 percent, with the conservative justices slightly higher and the liberal Justices slightly lower:
Kennedy: 84 percent
Roberts: 61 percent
Thomas: 59 percent
Alito: 57 percent
Scalia: 54 percent
Breyer: 51 percent
Sotomayor: 46 percent
Ginsburg: 45 percent
Kagan: 45 percent
We usually refer to the Supreme Court using the chief justice’s name, making this the Roberts Court. But it’s much more accurate to call this the Kennedy Court, because no one else really matters.
We’ve been here before with swing justices. Before Justice Kennedy was the deciding vote, it was Sandra Day O’Connor. The key difference, though, is that Justice Kennedy is much more conservative than Justice O’Connor ever was. Yes, Kennedy will forever be celebrated by liberals as the justice who gave us same-sex marriage, but we can’t forget that he has been consistently more conservative than Justice O’Connor on race, sex, abortion, free speech and a host of other issues.
Until the court composition changes, we’re all living in Anthony Kennedy’s world.