The Decider?

Damon W. Root | July 7, 2008

Over at Balkinization, legal scholar Sanford Levinson throws some cold water on David Broder's description of Supreme Court Justice Anthony Kennedy as "arguably...the single most influential arbiter of domestic policy in the land." Not so fast, Levinson says:

The overestimation of the power of the Supreme Court, which usually includes Tocqueville's demonstrably wrong quotation from his 1835 book Democracy in America on all political issues turning into judicial issues, is one of the continuing scandals of American political analysis.... Why isn't it enough to say that the Supreme Court is an institution of some importance with regard to some issues and, therefore, that Kennedy plays a key role with regard to those particular issues (i.e., where the Court is otherwise evenly split on ideological grounds)?

Mark Tushnet made a related point in a great reason interview a few years back, arguing that the Court basically just affects American society at the margins. "10 years down the line," he maintained, "the society's going to be pretty much where it would've been even if the courts hadn't said a word about it."

I'm curious what reason's readers make of this. Is Kennedy as influential as Broder makes him out to be? What about the Court in general? One more thing to consider: Narrow majorities do issue landmark decisions. To take a recent example, D.C. v. Heller came down 5-4 in favor of an individual right to keep and bear arms for self-defense. And while Justice Kennedy's comments during oral arguments gave a strong indication of his eventual majority vote, it's at least conceivable that he might have voted the other way, hamstringing the Second Amendment for decades to come.

Comments

Marcvs|7.7.08 @ 6:21PM|#

They're all a bunch of statists anyway, so it's really just a question of how many rights you are willing to give up. The fact that people are more energized about gay marriage than the abuse of the Commerce Clause just goes to show you how messed up our view of the courts has become.

|7.7.08 @ 6:23PM|#

I think Roe v Wade is the textbook example of a decision that, right or wrong, has shaped the landscape of what American society looked like "ten years down the line"

|7.7.08 @ 6:35PM|#

If you believe that the right to "own" your property shouldn't belong in bitterly ironic quotes, then what the Supreme Court does matters very much, indeed.

|7.7.08 @ 6:47PM|#

I'm curious what reason's readers make of this.

Don't do it! Its a trap!



....

Yeah Kennedy has a lot of power but it is nearly impossible for him to wield it in any predictive manner. Just look at the fall out of Kelo as a prime example.

Naga Sadow|7.7.08 @ 6:47PM|#

I've always viewed Supreme Court Justices as petty officials with arbitrary power to enforce their idealogical preferences. Shows how much I know . . .

*shrugs*

|7.7.08 @ 6:50PM|#

Keep in mind that until Justice Owen Roberts made his famous "switch in time that saved nine," [see West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)] the Court was doing an admirable job of reigning back the New Deal. I don't think anyone would seriously argue that the New Deal affected the country "at the margins."

Given the extent to which Roberts' opinion shaped the course of the American economy for the rest of the 20th Century (at least) and the similarity of Kennedy's position on today's Court, I'd say it's clear that Justice Kennedy wields tremendous power in the Judicial branch, and thus in the country at large.

|7.7.08 @ 6:51PM|#

Definitely Roe v Wade continues to have a large effect 35 years after it was handed down.

Brown v Board of Education was huge. Alabama and Mississippi (nominate others if you wish) would still practicing public school segregation absent that ruling.

|7.7.08 @ 6:51PM|#

If by "the single most influential arbiter of domestic policy in the land." you mean he does stuff then a whole bunch of other stuff happens, then yes.

If you mean he can plan the future domestic policy of America then no.

He would have to be some sort of Asimovian Founder-super-man to do that.

Elemenope|7.7.08 @ 6:57PM|#

Eight comments and the bulk of the important stuff has already been covered (and the original supposition of the article lying in smoldering ruins at the posters' feet).

thoreau|7.7.08 @ 7:04PM|#

Even if the Court does something that would have happened anyway, the very act of making it a judicial issue rather than a legislative issue has an effect on the political landscape.

Naga Sadow|7.7.08 @ 7:07PM|#

Oh . . . good point Elemenope. Root, my apologizes. As a product of government funded eduacation I'm used to being told what to think, not to incisively dissect the material given and develop my own analysis. And so for you Root . . . yes to all your questions.

|7.7.08 @ 7:09PM|#

One wonders if lefties will revere Heller as "settled law" in the future with the same obsequiousness as they demand potential Justices have for RvW.

Zeno|7.7.08 @ 7:15PM|#

I personally think Kennedy is near the top in "power" for domestic issues. Not only can he decide which bloc wins, but he can also drag that bloc as close to moderation as he wants in order to secure his vote. This formula works in basically all the 'normal' (polarized) cases, but breaks down when Breyer and Thomas team up, for example.

As for whether the court has influence: if it doesn't, why have I spent such a long time reading reason online for its opinions on wrong and right court decisions?

|7.7.08 @ 7:18PM|#

thoreau is better than I at clearing up conundrums of logic, but it seems to me to be a misunderstanding of cause and effect to assume any frequent "swing" voter is the "cause" of anything.
Seems to me Kennedy would more likely be the "effect" of something.

And isn't the spelling "Broder"?

|7.7.08 @ 7:53PM|#

misunderstanding of cause and effect to assume any frequent "swing" voter is the "cause" of anything.
Seems to me Kennedy would more likely be the "effect" of something.

I suppose it depends on where you draw the "cause" and "effect" line.

|7.7.08 @ 7:56PM|#

I agree with Thoreau, how we make changes matters more in the long run than the changes themselves.

Many have observed that modern social conservatives arose in the wake of court decisions which overturned centuries of precedence and tradition. Social conservatives seem more energized by the non-democratic way in which changes occurred than the actual changes themselves. Being told that one's opinions and votes simply do not count in political decision-making gets people's backs up.

Even the courts only advance an outcome a few years, judicial fiat creates polarization and extremism. Legislators must seek out compromise in matters decided legislatively because they actually have to be responsible for their decisions. With the courts settling matters, politician can stake out extreme positions without being held accountable for the consequences.

In short, judicial fiat erodes democracy on many levels. It does damage even when history judges the decision a correct one.

Episiarch|7.7.08 @ 8:06PM|#

One wonders if lefties will revere Heller as "settled law" in the future with the same obsequiousness as they demand potential Justices have for RvW.

While this is a somewhat interesting question, Chris, your constant changing of your handle is also interesting.

To take a recent example, D.C. v. Heller came down 5-4 in favor of an individual right to keep and bear arms for self-defense. And while Justice Kennedy's comments during oral arguments gave a strong indication of his eventual majority vote, it's at least conceivable that he might have voted the other way, hamstringing the Second Amendment for decades to come.

I had a pretty strong feeling it was going to be this way. I think the court tests the prevailing winds before it makes "landmark" decisions. These fuckers may be power-drunk assholes but they aren't stupid. The comment "'10 years down the line,' he maintained, 'the society's going to be pretty much where it would've been even if the courts hadn't said a word about it.'" is spot on, but not because of the way he thinks.

It's because the Supremes are humans at the end of the day, they know they way things are trending, and they are usually conscious of their "legacy".

Never discount the power of how you are viewed in posterity to effect the decisions of even those who are supposed to be impartial.

Elemenope|7.7.08 @ 8:16PM|#

In short, judicial fiat erodes democracy on many levels. It does damage even when history judges the decision a correct one.

And if democracy were the only and/or most important value in the universe of human values, that might actually matter.

Personally, I thank my lucky stars every time the judges decided, against the consistent will of the majority, to give accused criminals rights that the government is at least pro forma bound to respect. But perhaps that's just me.

Elemenope|7.7.08 @ 8:16PM|#

p.s. Episiarch, I think with that last comment you nailed it.

|7.7.08 @ 8:46PM|#

I think Tushnet is right; even if the SC came down on the opposite side of the 2nd Amendment in relation to DC, does that mean DC would have less guns in 10 years?
I think DC would end up having about the same amount of total guns, no matter what (even if that criminalized people; after all, drugs have been illegal a long time and society just keeps on using).

|7.7.08 @ 9:08PM|#

David E. Gallaher wrote: "And isn't the spelling 'Broder'?"

Actually, the correct spelling is F-u-c-k-w-i-t s-t-a-t-i-s-t t-o-o-l.

|7.7.08 @ 9:27PM|#

The problem is that it's inevitably the guy with an incoherent philosophy who gets all the power. I really don't like Kennedy, especially since I think he's on the fence so much almost entirely to get to be the guy with the power.

|7.7.08 @ 9:53PM|#

Oddly enough, I think Roe made abortion last longer as an issue than normally would have happened. The trend was towards more states passing abortion laws and had RvW never happened, the right would have a hard time railing against activist justices and penumbras. In the 6 years before Roe, abortion went from illegal in 50 states to legal in some form in 20 states (and DC), including all but 3 states from the former Confederacy.

I maintain, had Roe lost, abortion would be legal in almost every state in the Union and the Republicans would use some other issue to rally the religious right around. Either that or the religious right really wouldn't exist in their current form.

|7.7.08 @ 10:04PM|#

The problem is that it's inevitably the guy with an incoherent philosophy who gets all the power. I really don't like Kennedy, especially since I think he's on the fence so much almost entirely to get to be the guy with the power.

The real problem is that they all have incoherent philosophies. Kennedy just does not belong to one of the two popular incoherent philosophies found on the court.

|7.7.08 @ 10:07PM|#

I maintain, had Roe lost, abortion would be legal in almost every state in the Union and the Republicans would use some other issue to rally the religious right around. Either that or the religious right really wouldn't exist in their current form.

One should note the religious right started not with roe v wade but with the fairness doctrine stopping religious speech on the radio.

My guess is that sans RvW it would have looked much more libertarian then it does today.

|7.7.08 @ 10:18PM|#

My guess is that sans RvW it would have looked much more libertarian then it does today.

So they wouldn't care about creationism, controlling what you can do in the bedroom, for equal rights for homosexuals, pro legalization, anti forced prayer in schools and less controlling of things they don't like on TV if RvW went away? Abortion isn't what makes the religious right not libertarian.

|7.7.08 @ 10:47PM|#

Even the courts only advance an outcome a few years, judicial fiat creates polarization and extremism. Legislators must seek out compromise in matters decided legislatively because they actually have to be responsible for their decisions.

My thinking is pretty much the opposite. It is legislation, not judicial fiat, that moves faster than societies wish. It was a law passed by a state legislature that Wade was defending. Absent the legislation, there would have been no suit.

Frankly, criminal law should be written by judges and unanimous juries -- not by slim majorities in legislatures, which are much, much more flighty and politically motivated than society in general.

Booklegger|7.7.08 @ 10:48PM|#

Brown v Board of Education was huge.

It was also decided unanimously, not narrowly.

|7.7.08 @ 11:06PM|#

I think Roe v Wade is the textbook example of a decision that, right or wrong, has shaped the landscape of what American society looked like "ten years down the line"

Roe though was the culmination of a line of reasoning opened up by Griswold. Brown too didn't spring from the ether - it was the highwater mark of Marshall's "long march" of desegregation litigation.

|7.7.08 @ 11:59PM|#

One wonders if lefties will revere Heller as "settled law" in the future with the same obsequiousness as they demand potential Justices have for RvW.

Wouldn't that be awesome, if someday a libertarian Senator were grilling a potential appointee on Heller?

Maybe this can be our "litmus test."

.|7.8.08 @ 1:06AM|#

Guys in my high school are pretty much the same as they were ten years ago. No big deal.

Pendulum|7.8.08 @ 1:57AM|#

Kennedy, btw, probably reaches more liberty-friendly *results* than anyone else on the court (other than perhaps Souter, who has the broadest liberal view of both 1st and 4th Amendment rights).

I frequently see Reason commenters bemoaning the lack of a "libertarian justice". Well, Kennedy is the closest thing there is right now.

The kind of "principled" judging that people are decrying Kennedy for lacking very frequently leads to un-libertarian results. Can't have your cake and eat it too.

|7.8.08 @ 7:54AM|#

I get the impression Anthony Kennedy doesn't quite know what he thinks, which I find to be strange in a 72-year old man.

I wonder if he isn't getting it on with some hot junior law clerk, maybe that would explain his 'youthful' ways with opinions.

|7.8.08 @ 8:52AM|#

The D.C. vs. Heller ruling actually imperils the individual's right to keep and bear arms shall not be infringed. Ruling upon the 2nd Amend., while acting as if the sole operative verb (i.e. "infringed") didn't exist, was artfully done. However, since the definition of "infringed" is the same today as it was in the 18th century when the Bill of Rights was ratified, one must wonder what part of "shall not be infringed" remains unclear, even to SCOTUS justices?

Robert|7.8.08 @ 1:57PM|#

Many have observed that modern social conservatives arose in the wake of court decisions which overturned centuries of precedence and tradition.

Which is ironic, considering that court decisions are all based on old matter such as precedents and constitutional provisions.

|7.8.08 @ 7:17PM|#

Our Founding Fathers would shun all of You. PERIOD!
May your chains weigh on you lightly