Possible light is shed on the mystery of what makes "Slow Anthony" Kennedy "think"

Who knew? It turns out that serious Court-watchers have given serious consideration to the judicial "thinking" of Justice "Slow Anthony" Kennedy.

"It has always seemed to me that he divides the world, at least the world of government action — which is what situates a case in a constitutional framework — between the fair and the not-fair."

-- Linda Greenhouse, in a NYT "Opinionator"
blogpost, "Is the ‘Kennedy Court’ Over?"

by Ken

Linda Greenhouse, who for so long held down the NYT's Supreme Court beat, and obviously hasn't lost her preoccupation with matters Supreme had what seemed to me a really interesting case to press, which apparently wasn't thought important enough for the paper's edition and was relegated to the Opinionator ("Exclusive Online Content From The Times") website feature.

The part I found most interesting wasn't really the point Greenhouse wanted to make. We'll come back to that, but first I think we ought to pay respects to the point she did set out to make, which is that the Supreme Court is no longer the "Kennedy court."

[O]n a polarized court, with two blocs of four justices reliably taking opposite sides in any case with a hint of ideological content, the majority in important cases turned out to be wherever Justice Kennedy was. In the 2006-2007 term, the first full term after Justice Sandra Day O’Connor’s retirement, the court decided 24 cases by votes of 5-to-4, and Justice Kennedy was in the majority in all 24.

But during this past term, Justice Kennedy was in dissent in 5 of the 18 cases decided by five-vote majorities (a figure that amounts to one-quarter of the 73 cases decided with signed opinions, down from 31 percent in the previous term and 40 percent in the term before that.) Three justices to Justice Kennedy’s right, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., all cast fewer dissenting votes in those close cases (three, three and four, respectively) and Chief Justice John G. Roberts Jr. was tied with Justice Kennedy at five.

Those are admittedly fine distinctions from a small sample, but I would argue that it’s the trend that counts. Justice Kennedy no longer appears to reside at the court’s center of gravity. The center has shifted to the right.

The analysis becomes pretty complicated, and if you're curious, I encourage you to check out the case she makes. Obviously she knows worlds more about the Court than I do -- bothe the nuts and bolts of constitutional law and its day-to-day workings -- but she hasn't really changed my impression that on any difficult case that comes (or threatens to come) before the Supremes, the first question all eight other justices have continued to ask is, "Which way is Slow Anthony going to go?"

And it's precisely on the question of Slow Anthony that I direct attention to this post. Again, I can't claim to be an especially knowledgeable observer, but I've never been able to discern any logic in the Slowpoke's judicial thinking. Some days he rules with the Court's moderate bloc, more often with the conservatives, and I'm prepared to believe it's as much a matter of what he's had for lunch as anything else. It appears, though, that the serious Court-watchers have devoted much energy to puzzling out what makes the justice, er, think.

Much more than Justice O’Connor, whose position at the center of the court fell to him when she left, Justice Kennedy tends to think in broad categories. It has always seemed to me that he divides the world, at least the world of government action -- which is what situates a case in a constitutional framework -- between the fair and the not-fair.

Affirmative action policies are not fair -- he has never voted to uphold one -- because, in his view, they victimize those who bear no fault, such as the white applicant with higher test scores. Laws designed to bar gay men and lesbians from achieving their goals through the political process are not fair (he wrote the majority opinion striking down such a measure in a 1996 case, Romer v. Evans) because “central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.” The restrictions on corporate speech in the McCain-Feingold campaign finance law were not fair because the First Amendment does not abide discrimination among speakers.

In a book titled “Justice Kennedy’s Jurisprudence,” a political scientist, Frank J. Colucci, wrote last year that Justice Kennedy is animated by an “ideal of liberty“ that “independently considers whether government actions have the effect of preventing an individual from developing his or her distinctive personality or acting according to conscience, demean a person’s standing in the community, or violate essential elements of human dignity.” That is, I think, a more academically elegant way of saying fair versus not-fair.

So the challenge for anyone arguing to Justice Kennedy in the courtroom, or with him as a colleague in the conference room, would seem to be to persuade him to see your case on the fair (or not-fair, depending) side of the line. Maybe as a justice Elena Kagan will be able to work her magic as she did with the fractious Harvard Law School faculty. But a junior justice, unlike a law school dean, has no inducements to offer, and Justice Kennedy is a tough man to persuade, as other justices have learned.

Again, this is what really intrigues me: the notion that it's possible to divine actual thinking in what Slow Anthony does. But if you're curious about Greenhouse's ruminations on what she perceives as the passing of the "Kennedy court," here's her thinking on what has happened.

The notion of a “Kennedy court” rested on the assumption that Justice Kennedy’s vote was in play, at least most of the time, that the boundary separating liberals and conservatives on the court was at least theoretically permeable and that he was willing to cross it. If that is no longer, or hardly ever, the case, then whose court is it?

Here is a final set of numbers suggesting that the most accurate description of the Supreme Court today is that it is a court securely in the collective hands of its five most conservative members. Chief Justice Roberts and Justices Scalia, Thomas, Alito and Kennedy collectively dissented during the past term a grand total of only 39 times, averaging 7.8 dissents per justice over the course of a term that produced 73 decisions. The four others -- Justices Ginsburg, Stephen G. Breyer, John Paul Stevens and Sonia Sotomayor -- dissented 78 times, for an average of 19.5 dissenting votes per justice.

This doesn't seem all that different from what I said, the only real change being that the Court's Extreme-Right Goon Squad has reason these days to feel more confident about the answer to the "Whither Slow Anthony?" question. But then, I'm not the expert.

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