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"The Decider":

Today's Washington Post profiles Justice Anthony Kennedy, and his early emergence (as predicted) as the swing vote on the Supreme Court.

Most of the court's decisions are not ideological — there are more unanimous decisions than ones settled by a single vote. And not all of the 5 to 4 decisions pit the ideological conservatives — Roberts, Antonin Scalia, Clarence Thomas and O'Connor's replacement, Samuel A. Alito Jr. — against the more liberal justices — Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens — with Kennedy waiting to break the tie.

But many do. On the death penalty cases that have come before the court this year, for instance, the conservatives have consistently voted to uphold a state's imposition of capital punishment, while the liberals have sided with inmate complaints that their rights were violated. . . .

The 5 to 4 decisions totaled 11 in the 2005-06 term, with Kennedy in the majority in eight of them. There already have been that many this year, indicating a divided court and Kennedy's role as the deciding vote. His two dissents — involving sentencing rules in California and garbage-hauling in New York — came in cases in which ideological divides played no role.

UPDATE: Tom Goldstein has more on Justice Kennedy's emerging role on the Roberts court here.

Bearcat:
Were the sentencing and garbage cases really non- ideological? Or are reporters just too simplistic to look into the federalism issues posed by both those cases?
5.13.2007 9:43pm
Dave N (mail):
Neither case seems particularly ideological to me.

The sentencing case was Cunningham v. California, 05-6551. Cunningham held that a certain portion of California sentencing law ran afoul of Apprendi v. New Jersey. Apprendi is seminal the case that held that a jury must determine any fact that enhances a criminal sentence, other than the existence of a prior criminal conviction. Justice Kennedy was joined by Justices Breyer and Alito.

The other case was United Haulers Ass'n v. Oneider-Herkimer Solid Waste Management Authority, 05-1345. United Haulers held that a trash hauling law did not violate the dormant commerce law. Chief Justice Roberts wrote for three other justices; Justice Scalia joined much of the opinion; and Justice Thomas concurred in the judgment. Justices Kennedy, Stevens, and Alito dissented.

Cunningham has nothing at all to do with federalism. United Haulers does to the limited extent that a local government can require trash haulers to use a government owned dump.

However, I am sure that Con. Law professors across America will add United Haulers to their scintillating discussion of the commerce clause and the many cases dealing with either garbage or milk.
5.14.2007 12:03am
gattsuru (mail) (www):
I believe it notes more idealogical divides regarding conservative-liberal marks rather than actual ideas. At least if I'm getting the right data, the two cases had the other judges intermingle as well.

And... while I'm not proud to say it, today's interpretation of the commerce clause really isn't a significantly divisive matter, at least for lawyers. For some strange reason, they tend to find that they have power more often than they have to limit it.
5.14.2007 12:05am
tvk:
While there is no real doubt that Justice Kennedy is the key swing vote in many cases, the 8 out of 11 statistic is more surprising because it means Justice Kennedy is in the minority in 3 out of 11 cases. Given the nature of a 5-4 vote, you would expect a random justice to be in the majority approximately 6 out of 11 times. Justice Kennedy is batting two cases above average, but that is not nearly as high as one might have otherwise expected, given the hype about the new "Kennedy Court."

And it would pay to question the conventional wisdom here. Sure, we know that certain issues, e.g. abortion, death penalty, are "ideological"; not least because they regularly generate 5-4 splits in the Court. But, pray tell, in what world is a 5-4 split in the Supreme Court on the proper way to sentence criminals not "ideological," except that the vote didn't split in the conventional wisdom liberal-conservative divide? To put it another way, if the Court had decided Apprendi or Cunningham with exactly the same opinion but had split 5-4 with JPS, AMK, DHS, RGB and SGB in the majority and the remaining members in dissent, would there be any doubt that it would be lumped into the "ideological" category? And if the definition of an "ideological" issue is one where the JGR, AS, CT and SAA end up on one side and JPS, DHS, RBG, and SGB end up on the other; and we only count these "ideological" votes; then the inquiry is circular.
5.14.2007 12:44am
a bean:

And if the definition of an "ideological" issue is one where the JGR, AS, CT and SAA end up on one side and JPS, DHS, RBG, and SGB end up on the other; and we only count these "ideological" votes; then the inquiry is circular.

That's a great observation.
5.14.2007 1:42am
Ted Frank (www):
While the inquiry is circular if it is defined that way, there's an easy way to find out if it's a legitimate starting point: are those four-justice-coalitions much more likely to be in dissent than any other two combinations of four-justices-coalitions?

(I do dislike the "liberal" and "conservative" labels, though, as it implies voting blocs rather than justices with materially different views of the role of the judiciary--in which case there one to four justices with a Thomasesque view to varying degrees and five justices with a much more activist view of judicial supremacy, and Kennedy is just the one of those five most likely to peel off and join the other four.)
5.14.2007 10:10am
blackdoggerel (mail):
Completely agree about the circularity of the "ideological" argument, which often arises in media coverage of the Court. A week or two ago, there was an AP article about Justice Alito's votes so far this Term. The article said something to the effect that Alito was living up to his conservative billing because, "in every case in which the conservatives and liberals have divided, he has voted with the conservatives." Which, of course, is completely circular, and says nothing about, among other things, cases where he joined a "liberal" decision along with everyone else -- instances where, if he were truly the fire-breathing conservative he was made out to be at his hearings, he certainly would not have joined, instead writing separately to register his supposed ultraconservative views.

Pure laziness or ignorance on the part of the general media, I suppose.
5.14.2007 10:14am
anonVCfan:
"Pure laziness or ignorance on the part of the general media, I suppose."

I assume it's partially that and partially bias. People generally do more thorough research when reporting something that goes against their biases.
5.14.2007 10:54am
TomHuff (mail):
Just wanted to point out this recent SCOTUSblog post by Tom Goldstein — it has some more analysis re: Kennedy and the current court.

Link here.

Note that Goldstein's post says that Kennedy has been in the majority in ALL of the 5-4 decisions. Who's right here? (I don't think any new opinions came out b/n his post and the WaPo article, but I could be wrong.)
5.14.2007 11:09am
TomHuff (mail):
Just to follow up, here are Goldstein's numbers:


The most dramatic statistic relating to the five-to-four decisions is that Justice Kennedy has been in the majority in all of them. In five, he sided with the more liberal Justices. In three, he sided with the more conservative Justices. The remainder did not divide on ideological lines. Indeed, last week's decision in United Haulers was only the second time in forty decisions that Justice Kennedy dissented. He has yet to author a dissenting opinion.
5.14.2007 11:12am
TomHuff (mail):
Argh... my mistake. The WaPo article was talking about last year's term. Ignore my last post, but do check out Goldstein's post if you're interested.
5.14.2007 11:15am
just me:
The circularity problem reminds me of a similar trick used by one of the "court watch" projects by some lefty group during the filibusters a few years ago. The group (I think it was People For the American Way, but no time to google right now) published a report on how the courts had already gotten more "conservative" with Bush appointees, so it was critical to stop any more Bush appointees. And in ranking the various circuits, their shortcut was counting noses by party-of-presidential-appointment. So all Bush appointees were per se conservative, no matter how they came out in rulings. So we needed to stop his "extreme" nominees, but even if he nominated the next Reinhardt, it'd still count as a "conservative" pick for the next year's report.

Neat trick.
5.14.2007 1:18pm
frankcross (mail):
This is not representative of research. The circularity problem at the Supreme Court level can easily be overcome, some have taken pre-appointment estimates of conservatism or liberalism to see how they matched up with conservative or liberal votes. The answer is very well at the extremes, though nominees perceived to be more moderate have not always ended up moderate. The coalitions don't in fact correspond to views of judicial supremacy, as the conservatives are more likely to strike down federal laws and the liberals more likely to strike down state laws.

And in fact it is quite clear that Republican appointees, such as those of Bush, rule more conservatively. That may be good, or bad, but it's difficult to dispute.
5.14.2007 1:35pm
Viscus (mail) (www):
frankcross,

But alas, to admit that conservative justices are conservative instead of "neutral" would go against the right's self-righteous conceit that they have a monopoly on the "rule of law." You know, that warping of Marshall's famous words in Marbury v. Madison used by the Federalist Society that takes the quote: "It is emphatically the province and duty of the judicial department to say what the law is." and warps it into "It is emphatically the province and duty of the judiciary to say what the law is, not what it ought to be." Kind of funny how Federalists think they have a right to go f***ing around with a famous quote so as to add a false sense of legitimacy to their illegitimate cause.

What is really funny about the whole thing is that Marbury v. Madison combined an unnecessary and strained interpretation of a statute combined with an unnecessary again strained interpretation of the Constitution in order to arrive at a politically desired result -- a determination that the statute in question was unconstitutional. Marbury v. Madison was an example of judicial activism informed by political considerations if there ever was one! But, of course, that is conveniently ignored by Federalists who take liberties with quotes and try to manipulate our memories in an Orwellian fashion.

That conservative judicial philosophy that brings about overwhelmingly conservative results is "neutral" and "non-ideological" is the grand conservative delusion. Well, when I see Scalia's judicial philosophy explicitly written into the Constitution as the only true way, then I might think that his judicial philosophy isn't a statement about how things "ought to be." In the meantime, lets just say it. Conservatives gravitate towards particular judicial philosophies because they tend to (most of the time) lead to results that they favor. Of course, like any consistent philosophy, they lead to some results that conservatives might not favor (i.e. Apprendi), but that is nothing more than a minor cost when the joys of being self-righteous and indignant are at stake. (*conservative rant on* Those wretched liberal judges! Defying the rule of law! Not interpreting the Constitution as it is meant to be! *conservative rant off*)

Ever notice that certain originalists argue that Lochner was correctly decided? Nothing self-serving about that. It's just a coincidence that the policy in Lochner represents their favorite point of view. And I have a bridge for sale...

Oh, and it is just a coincidence that when deciding between judicial philosophies, that self-righteous conservatives choose that which advances their own conception of self-interest the most. Just a coincidence!

We liberals are just supposed to accept that conservative rulings are "required" by the "neutral" judicial philosophy of (coincidentally, of course) rightwing judges. Of course, if you ask the conservative -- "Where in the Constitution does it say that your judicial philosophy is the only righteous and holy path to legal truth?" -- they really have no better answer than that to say that the philosophy emanates from the "penumbra" of the document. =)

In short, we are to believe that Scalia's judicial philosophy has nothing to do with his deeply conservative worldview.

The right fools no one. (Except for themselves as they work themselves up into self-righteous lather and indignation).

Unfortunately for the rightwing and fortunately for the rest of the country, we are going to be electing a Democratic President in the near future, eliminating the need to worry about rightwing judges with "neutral" (i.e. conservative) ideologically-derived judicial philosophies. Kennedy should provide an acceptable balance until the Court can be turned back into what it should be -- more like the Warren Court.

If Bush has done anything good, it is his revealing to the country the dangers of rightwing ideology. I don't think you are going to see the right in control of both the Senate and the Presidency for quite a while. =)

That is something to celebrate! Alas, I don't expect to see members of the Federalist Society stopping their zombie-like rants now or in the future. Who knows what other quotes they will "emphatically mangle" in the meantime.
5.14.2007 3:01pm
frankcross (mail):
That was a bit of a rant, yourself.

I think you are right that some judicial "philosophies" are created to produce ideological results.

However, I think it is more common that those philosophies are manipulated. Originalism might tend to produce conservative results, but the justices, even the conservative ones, are quite selective in their originalism. See, e.g., Barnett on Scalia
5.14.2007 3:05pm
Viscus (mail) (www):
frankcross,

Sure, at times the philosophy is manipulated (i.e. not applied consistently) by Scalia and others (i.e. Scalia's comment that he is a "faint-hearted originalist" how self-serving is that?) At other times, they do apply their philosophy consistently (i.e. Apprendi).

But, that is not the central point. The central point is there is no reason that one interpretative philosophy should be considered "correct" in the first place. (But, again, conservatives will self-righteously beg to differ.)Amusingly, conservatives have no better justification for why their philosophy should be adopted than that the philosophy somehow emanates from the "penumbra" of the Constitution. We are to somehow believe that the conservative results of the philosophy have nothing ("Nothing at all, I swear!") to do with the rightwings tendency to gravitate towards it, when it is nowhere explicitly required by the Constitution or our traditions.
5.14.2007 3:17pm
JRL:

Amusingly, conservatives have no better justification for why their philosophy should be adopted than that the philosophy somehow emanates from the "penumbra" of the Constitution.


You can't be serious.
5.14.2007 3:46pm
Viscus (mail) (www):
JRL,

I am.
5.14.2007 3:51pm
Brian K (mail):
I agree with you Viscus. Conservatives, like liberals, pick judicial philosophies that lead to results they agree with. It's not the other way around. They then say it is the "right" way to interpret the Constitution.

It is similar to "judicial activism". It's only judicial activism when the ruling is counter to their beliefs...otherwise it's the "correct" decision.
5.14.2007 4:59pm
Sebastian Holsclaw (mail):
"The central point is there is no reason that one interpretative philosophy should be considered "correct" in the first place. (But, again, conservatives will self-righteously beg to differ.)"

This is an argument against having a Constitution. If you really believe there is no reason why one interpretative philosophy should be considered "correct" why bother writing the words down in the first place? Just say "5 judges get to decide all things" and move on. But no whining about how it is 'unconstitutional' for Bush to suspend habeas corpus. No complaining about how conservative judges are 'undermining' Roe. You have completely undercut your ability to argue about a correct or incorrect answer on any 'Constitutional' question.
5.14.2007 5:22pm
JRL:
My judicial/interpretative philosophy leads me to a great number of results with which I disagree.

I'm not sure if that says more about you or more about me. I'm guessing it's you, though.
5.14.2007 5:51pm
Brian K (mail):

My judicial/interpretative philosophy leads me to a great number of results with which I disagree.

I'm not sure if that says more about you or more about me. I'm guessing it's you, though.


HAHAHAHAHA

absolutes are meaningless in a conversation like this. proportions matter. if you make a lot of decisions then you can be forced to make a large number of decisions you disagree with but it will still be a small proportion of all of your decisions.

Your comment says a lot about you also. unfortunately none of it is good.
5.14.2007 6:10pm
A.C.:
Brian K -

It's rather common to desire a certain result, but to believe that Institution X does not have the authority to bring it about. Most people think they can run the world better than the people who are doing so at any given time (the number of people in bars who know just how to reform health care is amazing), but most adults understand that their particular job descriptions limit their authority. Not all, unfortunately...
5.14.2007 6:32pm
Brian K (mail):
A.C.,

(I'm going to assume your comment is direct at my comment about judicial activism...if I'm wrong feel free to correct me.)

What you are saying is itself a judgment call. It is an answer to the question "what role do you think the courts should have?" Most people who throw around the term "judicial activism" think the courts should have a subservient role to the executive and the legislature. This is invariably because the are political aligned with the party in power. I disagree.

I think the courts should have an equal share of power. they should not be subservient to either of the other 2 branches. They should strike down unconstitutional and unjust laws. What I define as unjust will undoubtedly be different from what you define it as...but that just means rulings are debatable not that they shouldn't be made. Rulings can always be overturned upon review or by the legislature. The courts should also feel free to make new laws where the current legislation is contradictory or absent. I would prefer if the judge said "this is the way it should be" rather than trying to base it on some contrived interpretation of the constitution. The former way invites legislation to change the ruling while the latter way precludes legislation from changing the ruling.

All of this is debatable and no one interpretation is the "correct" one (unless it is explicitly stated in the constitution). Claiming that the way you prefer is the only correct way is disingenuous and only fools fools.
5.14.2007 6:57pm
Viscus (mail) (www):

This is an argument against having a Constitution. If you really believe there is no reason why one interpretative philosophy should be considered "correct" why bother writing the words down in the first place? (bold added).


I am sure these sentences you just wrote as a comment on this blog is subject to multiple interpretations. So, why did you bother writing it at all?

Seriously, this is just a silly comment. All or nothing. We must have one intepretation (exactly one I say!), or it is all meaningless? (I can sense the unreasonable self-righteousness so characteristics of Federalist Society members creeping in already.)

It is kind of like Highlander. There can be only one! A cool movie, no doubt, but probably not the best model for Constitutional interpretation.

Guess what, even Scalito, I mean Alito, Thomas, Roberts and Scalia don't agree on all constitutional issues. So, even when we have rightwing extremists on the bench, we still don't have one interpretation. The horror! The horror! =) Why have a Constitution at all! Burn it! It is impure!

In any case, you still have not explained where the "one" (holy and righteous) interpretative methodology comes from. From the "penumbra" of the Constitution, I presume?? =)
5.14.2007 8:17pm
Viscus (mail) (www):

My judicial/interpretative philosophy leads me to a great number of results with which I disagree.


Since my "judicial/interpretative philosophy" consists of flipping a coin to decide cases, it also leads to many results that I disagree with.

The point: That does not explain (1) where you philosophy come from (I made it up! God himself! Scalia told me what to think!) and (2) why it is more legitimate than other philosophies.

Anyone can come up with an interpreative philosophy that leads to results they disagree with some of the time. That doesn't make it better than all the other philosophies that also lead to disagreeable results from time to time. =)

Try again.


I'm not sure if that says more about you or more about me. I'm guessing it's you, though.


Okay, I will admit it. I have no idea what you are trying to say. But I bet I can come up with an intepretation, the results of which I don't like. =)
5.14.2007 8:24pm
Viscus (mail) (www):
AC writes


It's rather common to desire a certain result, but to believe that Institution X does not have the authority to bring it about.


I believe that police officers do not have the power to arrest people who steal candy from children.

What makes a belief about the "institution" of police officers right or wrong?

but most adults understand that their particular job descriptions limit their authority
5.14.2007 8:27pm
Viscus (mail) (www):

but most adults understand that their particular job descriptions limit their authority


Let us look up the "job description" in Article III:


"Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish..."

"Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority..."


Nope. Nowhere did Article III say that the court will use the interpretative methodology invented and insisted on by Justice Scalia. Nowhere does it that the court will use either "original intent originalism" or "original meaning originalism."

So, once again. From whence does your dogmatic insistence on a particular interpretive methodology arise? One that just happens to lead to results you tend to favor. From the "penumbra" of the "job description" in Article III.
5.14.2007 8:33pm
JRL:

I am sure these sentences you just wrote as a comment on this blog is subject to multiple interpretations. So, why did you bother writing it at all?


Just because there potentially multiple interpretations does not mean there does not exist one true correct interpretation.

Your premise seems to be there can be no right answer, ever.
5.14.2007 8:36pm
keypusher (mail):
Is it possible to put individual commenters on ignore?
5.14.2007 8:47pm
Viscus (mail) (www):

(1) Just because there potentially multiple interpretations does not mean there does not exist one true correct interpretation.

(2) Your premise seems to be there can be no right answer, ever. (bold and numbers added)


I agree with (1) as a general matter. Say in math. There might be different interpretations of a symbol, but often when the meaning of the symbol is fixed, there is in fact only one right answer as the result of the mathematical operation. The problem I have with (1) is that you have failed to instatiate this general principle in this particular context. That is, you fail to explain (a) how there is only one "correct" interpretation of the document in question. It is not enough to waive your hands by pointing to an abstract principle that humbly says that their might be, you have to instantiate it in a particular instance.

To say it another way:
Just because there are potentially multiple interpretations does not mean there does exist one true correct interpretation.

As should be clear, (2) is not in fact my premise. There are right answers in certain domains with well defined problems. I would not say that "can be no right answer, ever." (I am a computer science major, for heavens sake!) My point is that there can be a right answer is some domain does not establish that there is is in all domains. Or in this domain in particular. Obviously. That is elementary logic.

Let us face the hard truth. Scalia has just made up his interpretative methodology. Just as the shift from original intent to original meaning originalism was the product of human arbitrariness and a panicked political ideology in the face of intellectual defeat, rather than a product of the Constitution.

The origin of Scalia's "right answers" is illegitimate. The origin is nothing more than "me, myself, and I." But that will not stop Scalia from self-righteously proclaiming that all who do not follow his method of interpretation are unrighteous and unworthy. It is Scalia the usurper, who presumes that the Constitutions means exactly what he wants it to mean according to his arbitrarily selected interpretative methodology.

This is what happens when we go from the humble "can" to the self-righteous "must."
5.14.2007 9:42pm
David M. Nieporent (www):
BrianK:
They should strike down unconstitutional and unjust laws. What I define as unjust will undoubtedly be different from what you define it as...but that just means rulings are debatable not that they shouldn't be made.
No, actually it does mean that they shouldn't be made. "Unconstitutional" is clear. But "unjust"? What makes a judge any better or more suited to deciding what's "just" than anybody else? What referent is he using, other than his personal opinion? But why should his personal opinion matter to anybody? Surely if we're looking for personal opinions on what's "just," clergy would be better suited than judges; the former are trained in matters of justice, while the latter are only trained in law.

If a judge can just ignore a law because he disapproves of it, then that's not an "equal share" of power; that's judicial supremacy. Why have a legislature at all?


Viscus
Okay, I will admit it. I have no idea what you are trying to say. But I bet I can come up with an intepretation, the results of which I don't like. =)
What he's saying is that if you and Brian think that there's no such thing as a correct interpretive philosophy and that judges simply pick the one that gives the results they like, then all that does is call into question your own intellectual honesty. The fact that you make decisions this way doesn't mean everyone else does. You're just psychologically projecting your own flaws onto others.

The central point is there is no reason that one interpretative philosophy should be considered "correct" in the first place. (But, again, conservatives will self-righteously beg to differ.)Amusingly, conservatives have no better justification for why their philosophy should be adopted than that the philosophy somehow emanates from the "penumbra" of the Constitution.
No. It emanates from the nature of a constitution -- any constitution. The purpose of a constitution is to bind future polities to a specific set of substantive and/or procedural rules. If one adopts an interpretive philosophy that fails to accomplish this, then one has negated the entire raison d'etre of that constitution.


That doesn't mean that an originalist can't mistakenly rule; obviously any person can err. What it means is that when an originalist mistakenly rules, we have something objective to point to that enables us to say that it was a mistake. Whereas your nihilistic philosophy of the law meaning whatever those with guns want it to mean, all we can say is that we like the ruling or dislike it. But if the judge's only basis for ruling a certain way is that he likes it, why is that ruling deserving of any respect?
5.15.2007 8:48am
Sebastian Holsclaw (mail):
"As should be clear, (2) is not in fact my premise. There are right answers in certain domains with well defined problems. I would not say that "can be no right answer, ever." (I am a computer science major, for heavens sake!) My point is that there can be a right answer is some domain does not establish that there is is in all domains."

Can we be very clear? You are talking about Constitutional law, right. So you believe that there are right answers in SOME domains, but NOT in Constitutional law. You seem to be clarifying yourself right into a corner.

You seem to want to criticize Scalia, but you have completely undercut your logical ability to do so. In your scheme, why not flip a coin to decide Constitutional issues. If Scalia decided to use that as his method, you have poisoned the well so much that you can't even criticize that!
5.15.2007 1:15pm
David M. Nieporent (www):
Sebastian, I think his twisted logic is that the only wrong method is to say that there's a right method. If Scalia flips coins because he likes flipping coins, that's perfectly acceptable -- but if Scalia flips coins because he thinks flipping coins is the right way to decide cases, that's a problem.
5.15.2007 6:59pm