JURIST Guest Columnist Adam Samaha of the University of Chicago Law School says that this Term's US Supreme Court cases will likely reveal whether we have a new boss on the Court who can push its decisions in new directions, or whether we have an old boss in the form of precedent slowing drives for change...
True, Court personnel changes might make for good television. (Think Robert Bork, not Ruth Ginsburg.) Plus changes in the cast of characters open possibilities for unanticipated season finales. But new faces do not always foreshadow new outcomes. And old faces may develop new complexions. If we want to predict how the new ensemble will decide its cases, we have to forecast locations of power within the Court.
These locations are not marked with a title. Nobody should automatically stamp a Court lineup with the Chief Justice's surname. Sometimes the name fits, but often it is even less helpful than using the decade as a unit of analysis. The 1960s seem to have ended in 1972 or later. And for every John Marshall there is a Fred Vinson, for every Sherman Minton a William Brennan.
A justice's ability to persuade colleagues is one component of power, but this is difficult for outsiders to measure. Identifying the "swing justice" is an alternative. Academics might use sophisticated models to isolate the swing justice(s). The basic idea, however, is simple. It is the most likely fifth vote out of nine, and sometimes this is transparent. In closely divided cases, rock-solid votes lose importance. The Hamlets of the Court matter most. In fact, this seems more true for cases than elections. Turnout tends to be 100% at the Court so nobody gets an edge for better get-out-the-vote efforts.
Who will play Hamlet most often, or in cases deemed important? Data from last Term suggest at least two candidates for the role.
John Roberts was in just about as many five-vote coalitions as was Anthony Kennedy and certainly not because Roberts has the better title. Furthermore, Roberts has stated a preference for narrow rulings. Only he joined in full Justice Breyer's campaign finance opinion, for example. It condemned Vermont's limits on contributions and expenditures, yet appeared to maintain the general approach of past decisions. On this issue Kennedy is the aggressor. Indeed he has staked out other strident-sounding positions for speech regulation, affirmative action, and sometimes the establishment clause.
Yet there is a developing reluctance to use such information to predict Kennedy's behavior. Some believe Kennedy enjoys attention and power that he will reserve enough ideological flexibility to be the swing voter in marquee cases while he cultivates a good reputation among the elite. On this theory Kennedy will be the new Sandra Day O'Connor, because he is closest philosophically to that slot already and because he will be willing to move there anyway. As a practical matter, then, Samuel Alito's confirmation hearings were about replacing the old Kennedy, not O'Connor.
This understanding of Kennedy could be correct. Roberts might be playing nice while shifting Right. And Kennedy was apparently the fifth vote in several high-profile cases last Term, like Hamdan v. Rumsfeld. As for the Justice's aspirations and psychological needs, there can be only competing speculation.
This helps swing-voter enthusiasts select a few pending cases to watch carefully. Focusing on constitutional law:
1. The Court will address the ability of school districts to consider student race when populating oversubscribed schools. The districts' goal is to provide some parental choice while avoiding racially homogenous schools. Kennedy could soften his opposition to race-based government action in this setting, or possibly forfeit the swing vote. Advocates might then see a chance to sway Roberts or Alito, in light of partly favorable precedent on graduate school affirmative action.
2. The Court will revisit partial-birth abortions, this time reviewing a federal ban. The prior lineup struck down an almost identical state legislative effort, 5-4, with Kennedy in dissent. This is another situation in which the new justices might be bigger swingers, at least if precedent matters and they would otherwise let the statute stand. In fact, Clarence Thomas might have been the swing voter if the case had been framed differently. It is not clear he could honestly find a grant to Congress of regulatory authority over most abortions.
3. The Court also has a punitive damages case involving the death of a cigarette smoker. Kennedy has used constitutional law to trim back punitive damages before. But it could be that Roberts and Alito have no such inclination just like Scalia, Thomas, and Ginsburg. Two of those three see intervention here as little different from Court protection of abortion, and none of them seem ready to cave. The issue therefore tests the strength of still more pre-Roberts precedent. And it comes with the fun of media-unfriendly coalitions of justices.
There is bound to be drama as we learn whether we have a new boss who can push Court decisions in new directions. Or whether we have an old boss in the form of precedent slowing drives for change. Or whether we have an old boss in the form of Sandra Day O'Connor body-snatching one or more sitting justices.
It is worth noting, however, that the titillating search for today's swing justice can be a crippling distraction if you are interested in meaningful change. Visible drama is just not the same as revolution. Talk to Mr. Hamdan about his Court victory in light of the Military Commissions Act of 2006.
We should be asking not only who is swinging, but within what confines. We should be looking for not only particular decisions, but what counts as a conceivable outcome. The new justices will undoubtedly have an effect on the Court's direction. But so far and compared to recent years, neither the questions nor the likely answers seem radically new.
About 35 years ago, the justices saw a quite different set of options. There was a choice between prohibiting capital punishment and mending-but-not-ending it. There was a choice between defending welfare beneficiaries with procedure alone and holding that the benefits themselves were required. There was a choice about deregulating abortion but protecting consensual gay sex was not yet in view.
We live in a distinct constitutional world, and the feasible options will have shifted again 35 years from now. There is no perfect algorithm for predicting that new option set, much less an assurance the justices will have much control over the matter. But it is a fact that the personnel dramas of the Court can be a meaningless sideshow. And on that point, I would not want anyone to be fooled (again).
Adam M. Samaha is an assistant professor at the University of Chicago Law School, and a former law clerk to Justice John Paul Stevens. His latest article is Undue Process