This Is Kennedy's Court—the Rest of the Justices Just Sit on It

Two cautious 5-4 rulings on criminal procedure show just how much influence the Supreme Court's swing vote has in shaping jurisprudence.


Larry Downing/Reuters

You could almost hear the disappointment of the earnest and the eager Tuesday morning when the United States Supreme Court issued two rulings that were not its long-awaited decisions in the Voting Rights Act case, the affirmative action case, the Defense of Marriage Act case, the Proposition 8 case, or the (breast cancer) gene-patenting case. There are now just over four weeks to go in the term -- it almost certainly will end the last Thursday in June -- and there are 28 cases, including the doozies above, that have not yet been officially resolved.

But the two decisions the justices did offer Tuesday were interesting nonetheless for what they tell us about the Court and about its approach to criminal procedure. They remind us of the occasional gulf between Justice Anthony Kennedy, the Reagan appointee and perpetual swing voter, and the rest of the Court's conservatives. They highlight the withering contrasts between the Roberts Court and the Warren Court. And they suggest that the justices are of different minds when it comes to finding a workable balance that faithfully protects the constitutional rights of defendants while still ensuring that the guilty are justly punished.

The cases came from Michigan and Texas, respectively, and in each instance Justice Kennedy swung with the Court's four liberal justices to make it slightly easier for condemned prisoners to get help from lower appellate courts when they challenge their convictions or sentences. In each case, too, the majority opinions, limited though they were to get Justice Kennedy to sign onto them, generated heated dissents from the Court's conservatives. Even on the margins, it seems, this is a divided, fractured Court when it comes to cases brought by aggrieved defendants who got raw deals from their trial attorneys.

When I say "slightly easier" for the prisoners, I mean it. In McQuiggin v. Perkins, the Court, by a 5-4 vote, declared that some prisoners who claim they can prove they are innocent may be able to overcome one of the high procedural hurdles to judicial review imposed upon them by the Antiterrorism and Effective Death Penalty Act (AEDPA), the Clinton-era federal statute enacted to curtail frivolous appeals. For the majority, Justice Ginsburg wrote that the new "exception" to the statute would have to be narrowly defined and applied and that it likely wouldn't apply to help Floyd Perkins, a convict who claims he's innocent of murder.

Meanwhile, in Trevino v. Thaler, the Court by a 5-4 vote marginally broadened opportunities for federal procedural review of cases in which state prisoners allege that their trial lawyers have been incompetent. Writing for the majority, Justice Breyer wrote that such additional federal protection was necessary in Texas because the state's procedural system -- "as a matter of its structure, design, and operation, does not offer most defendants a meaningful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal." It's hard to know which man, Perkins or Carlos Trevino, got worse representation. But it's close.

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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, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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