The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Jonathan has a nice post on the end of the "Kennedy Court." Just as Justice Kennedy replaced Justice O'Connor as the "swing" justice, it seems reasonable to anticipate that Chief Justice Roberts will be replacing Justice Kennedy as the new swing vote–a role he's likely to be pretty happy with. If it's true that whoever is the swing justice tends to have the most power and influence, then this change could truly mark the beginning of a genuine "Roberts Court."
However, before everyone spins themselves into a tizzy about the departure of Justice Kennedy, the chart below from SCOTUSBlog on the voting relationships of the Justices this term is worth examining. It shows a number of interesting relationships among the Justices.
- Of all the Justices, the ones who voted most frequently together are Justices Ginsburg and Sotomayor (at 96%); after them it is Justices Breyer & Kagan (at 95%).
- On the conservative side, the Justices who voted most frequently together were Justices Thomas and Alito (at 94%)
- The Justice who voted most often with Justice Kennedy was Chief Justice Roberts (at 90%).
- The Justice who was next closest to Justice Kennedy was his former law clerk Justice Gorsuch (at 85%).
- Indeed, Justice Gorsuch voted more closely to Justice Kennedy than to any other Justice: Roberts, Thomas, and Alito all tied for second at 82%.
Of course, these are stats from one term only. Justice Kennedy may well have been more "conservative" in his voting this year than in prior years given on the docket. But if they are measuring something that is real–and they may not–this voting pattern hints that
- The Court may not be pulled as sharply to the right–however you determine this–by the appointment of another Justice Gorsuch as some critics will allege. (Which of the judges on Trump's list is closest to Gorsuch is another matter. None are likely to be clone.)
- A Justice who is committed to originalism may reach many of the same outcomes as a Justice as seemingly eclectic in his methodology as Justice Kennedy.
- While Justice Kennedy did not call himself an originalist and did not generally employ originalists/formalist/textualist methodology, his own instincts may have comported pretty closely–and with significant exceptions–with conclusions yielded by originalism. (This may reflect my own views of the gravitational force of originalism.)
- Finally, the simple conservative-progressive continuum may be too simplistic to accurately capture a more complex reality.
In the end, the original meaning of the Constitution will not always comport with what a "conservative" would prefer to be the outcome of a given case. If that's correct, then the more faithful a Justice is to that meaning, the less his voting will conform to a purely conservative or purely progressive agenda.
FWIW: here is the chart:
Voting relationships (OT17)
|Justice Agreement in full, in part, or in judgment|