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.
Start your day with Reason. Get a daily brief of the most important stories and trends every weekday morning when you subscribe to Reason Roundup.