The “Kennedy Court,” only more so (he will be, when he chooses the Liberal bloc “assigning Justice")

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Justice Anthony Kennedy

If it has been so that the Supreme Court could properly be called the “Kennedy Court,” because of Justice Anthony M. Kennedy’s grip on a tie-breaking vote much of the time, that may well be even more so when the Justices open a new Term next October. Without Justice John Paul Stevens, who announced Friday that he is retiring soon, Justice Kennedy moves into position to become a frequent “assigning Justice.” That is a role not well known beyond Court-watchers, but it is quite important, and can make a difference in how ambitious, or cautious, the Court is in ruling on major, hard-fought cases.

But Kennedy also will no longer be an object of Justice Stevens’ efforts to marshal a majority of the Court for results that are — more often than not — liberal rather than conservative. There is, at present, no other member of the Court’s liberal bloc likely to match Stevens’ ability to persuade a sometimes-reluctant Kennedy to join with that bloc in a closely divided case. If Kennedy is to vote for liberal outcomes, it may well have to be more of a personal choice than it has seemed to be up to now.

These two changes in the Court’s internal dynamic, as Kennedy moves up a notch in the Court’s seniority rank, might well pull him in opposite directions — but still winding up holding the decisive vote. An explanation is in order...

...if Kennedy were to line up, in a divided case, with the Court’s four moderate-to-liberal Justices (assuming Stevens’ replacement sides with that bloc), Kennedy would always have the assigning task, inheriting it from Stevens. He would outrank, in seniority, all of the Justices in that bloc. He thus will be able to shape even the Court’s more liberally inclined outcomes, by the way he chooses the opinion authors. And, if he thought any of the other four might use an assignment to write an opinion more sweeping than he would want, he could assign the task to himself, and keep it within whatever bounds he chose so long as it did not drive off one of the four other votes he would need to keep a majority.

http://www.scotusblog.com/2010/04/the-kennedy-court-only-more-so/#more-18453

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1. By the time Ginsburg moves up to that role she will be long since retired

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2. This is a more important role than many realize

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3. Kennedy is going to burn in hell with Rhenquist.

He might want to consider that more often.

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4. kick