New York Times legal correspondent Adam Liptak had an interesting piece yesterday arguing that through a combination of forceful questioning and writing, Justice Sonia Sotomayor is starting to emerge as the guiding force of the Supreme Court’s liberal wing. The Harlan Institute’s Josh Blackman explains why Liptak’s thesis doesn’t quite hold up:
The only thing that will shift the Court to the left (other than a retirement) is persuading Justice Kennedy to change his mind. Does anyone think Justice Sotomayor’s brusque questions at oral arguments and dissent from a denial of cert on a case that none of her colleagues found worthy of review on a claim that the court of appeals found “patently frivolous” will make any difference?
For the possible negative consequences of an aggressive Justice, look no further than Justice Scalia. Surely, Scalia’s rhetoric has done nothing to shift Kennedy, and previously O’Connor, to the right. If anything, it has pushed them away. President Bush did not even consider him for Chief for these reasons.
Why would anyone think that Sotomayor doing her best Scalia impression would bring Kennedy to the left? It could even have the unintended consequence of pushing him the other direction, especially with a tactful Chief Justice at the helm of One First Street assigning opinions.
Justice Kagan, and her suave, unassuming but persuasive temperament, may represent the Left’s last best hope to persuade Justice Kennedy on the key issues of the day.