Why Kennedy Owns the Supreme Court

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Many legal beagles, myself included, have argued for months now that the retirement of Justice John Paul Stevens' during the Obama Administration would not likely alter the Court's ideological balance. The mostly liberal Stevens will be replaced by a mostly liberal other person (hopefully not a judge!) but the Court's essential politics won't change. With or without Stevens, it is still a very conservative Court, with a Reagan appointee, Justice Anthony Kennedy, occasionally crossing the aisle to side with his liberal colleagues.

But there are two ways in which the Court dynamic—and maybe even as a result its substance—will change in the absence of Justice Stevens; no matter who the President selects to succeed him. And one of them is quite important.

First, Justice Stevens' retirement will make Justice Antonin Scalia the Court's most senior member. The Justice who loves to make with the wisecracks was sworn in on September 26, 1986. To give you some sad perspective on how long ago that was, it was precisely one month and one day before the ball rolled through Bill Buckner's legs to end Game Six of the World Series. Will the new title—Old Man of the Court—soothe and temper Justice Scalia's perennial wit? Will he become more eager to cement a legacy broader than the one he has now? Scotus pyschoanalysts—that's a question for y'all.

The second change is more significant and quite ironic. As Dahlia Lithwick noted early in the week, with Justice Stevens gone, the senior member of the Court's liberal quartet—Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and the Stevens replacement—becomes Justice Ginsburg, who was appointed by President Bill Clinton in 1993. The senior member of the Court's transient majorities—and/or the Chief Justice—gets to select the author of the majority ruling—and that is a very big deal.

But four votes on the Supreme Court on any given case isn't typically worth a warm bucket of spit (to paraphrase). So there are only two ways in which Justice Ginsburg (or any liberal member of the Court more junior to her) would ever get to both be in the five-vote majority and senior enough to select who gets to write the opinion.

The first is if she joins forces with her liberal colleagues and a conservative member who is junior to her. The only two candidates there are the Chief Justice and Justice Samuel Alito and we automatically count out the Chief Justice. Is it possible that the staunchly conservative Justice Alito would cross over and vote with the Court's liberals? Anything's possible, right? Just don't bet your credit-default swap futures on it.

The other way Justice Ginsburg et al can win given the Court's current ideological makeup is if Justice Anthony Kennedy sides with her and the other liberal members. But if this happens—and of course it does on occasion—it would be Justice Kennedy who would have seniority over Justice Ginsburg. He was sworn in on February 18, 1988, one year before the end of the second term of the presidency of Ronald Reagan.

This means that Justice Kennedy will have even more power in the new court lineup than he already does. For the man who already dictates which close rulings go in which direction this is really saying something. Post-Stevens, Justice Kennedy not only will control with his vote which cases the liberals win but also, if they do win, the form in which that victory is to written for all time. Imagine that: A Reagan appointee, and for the most part a solid conservative foot-soldier, holding the batteries to the Court's liberal megaphone. You just can't make this stuff up.

Back to the judicial psychoanalysts. Will Justice Kennedy wisely and fairly carry out this new duty or will he take from the left (by choosing himself to write the opinions) even as he gives to it (by voting with Ginsburg in the first palce). Some of this already happens, of course; sometimes the honor and prestige of writing the ruling is the price one side or the other has paid to Justice Kennedy in order to secure his vote. But now it won't just be diplomatic and a good idea; now it will be the rule. 

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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