The Kennedy Court? Or the Roberts Court?:
Over at Legalities, Jan Crawford Greenburg has a provocative post about the direction of the Supreme Court. An excerpt:
Some are going so far as to call [the current Court] the "Kennedy Court," just as people used to refer to the old Court, led by Chief Justice William Rehnquist, as the "O'Connor Court."

Not to sound like AMK himself here, but I've been struggling with that. That label just doesn't fit—nor does it capture what's going on inside the Court. I know Kennedy is the Man to Watch. But I don't think we're seeing the emergence of the Kennedy Court.

This is a Supreme Court engaged in a fierce battle of ideas, a big-picture struggle over the role of the Court and the direction it's going to take. When you talk about long-range influence over the law, it's the ideas that define the Court. It's a Court in struggle—not for the vote of one justice, but for an intellectual mooring.

It's the Roberts Court v. the Stevens Court.

And as this term is beginning to make clear, in that battle, Roberts' vision is going to win out. It may not be this term, though the Chief certainly will prevail in those big-issue cases more than JPS will. It may not be in every case, or with much in the way of consensus. But even if Stevens stays another decade (to 97!), I'd bet that Roberts is going to carry the day with this group of justices.
elChato (mail):
With so many aging justices and a new administration 20 months away, there isn't much time for Roberts to notch up any really big victories in the court as currently composed.
5.15.2007 7:50pm
I think any objective observer has to be impressed with the intellectual chops of the present Court. All four of the conservative Justices clearly have first-rate legal minds, and I say that as no great fan of the results they generate. On the more liberal side, Breyer and Ginsburg more than hold their own.

It seems like when you look back at the Supreme Court through history, you tended to have maybe 2-4 brilliant thinkers and a bunch of mediocrities to fill out the ranks. We're doing better now.

Much is made of the ability of one viewpoint or the other to capture 5 votes and thus carry a particular day. But the present group of conservative Justices has an opportunity to reshape our jurisprudence in a way that not only affects today's outcomes, but also carries the power to compel future generations to their way of thinking. Since they're hardly a monolithic bloc, though, it remains to be seen if this will play out in practice.
5.15.2007 7:58pm
Viscus (mail) (www):

also carries the power to compel future generations to their way of thinking

This is definitely wishful thinking. But, I guess we will just have to wait and see what future generations do. =)

New generations usually do not find the arguments and points of view of older generations "compelling." But I am sure there is at least a 0.0001 probability that the Roberts court will be the exception. =)

Finally, a bunch of people who, when they are old and dead, have a significant chance at being compelling!

As far as I am concerned, I think future generations should make up their own minds and not feel compelled one way or another. But that is just me. =)
5.15.2007 8:32pm
New generations usually do not find the arguments and points of view of older generations "compelling."

And yet, the courts still quote John Marshall. We still follow a Constitution that was written 220 years ago. We do not, in fact, reinvent the wheel with each generation, no matter how much you wish it so.
5.15.2007 8:37pm
Viscus (mail) (www):
John Marshall and the founders are an exception.

I don't see many people saying we should follow Taney's views of Con Law.

Sorry, this is just wishful thinking. The lowly Roberts is no John Marshall. =)

The only people who find conservative judicial reasoning persuasive are conservatives. =)
5.15.2007 9:49pm
Justin (mail):
I agree with elChato. Neither side is persuading the other, or for that matter, the relatively uninterested country. While the "old left jurisprudence" of Dworkin and Brennan have been rejected, that rejection goes even to the "Stevens side" of the Court. As for the more concrete differences, they will be decided by the completely unrelated presidential elections, and the choice of nominees. If there are 5 Democratic nominees (+ Souter and Stevens) on the court, the Stevens (more accurately, Ginsberg/Breyer) jurisprudence will win out. If there remains 5 GOP nominees (I do not think, unless Giuliani is made president, that we can expect nominees to fail to adhere to the basic political tenents of the two sides in the future - ie, no more Souters or Stevenses), then expect the "Roberts side" to win out.
5.16.2007 1:43pm