When the court is closely divided on deeply controversial issues, there is always the prospect that such big cases will get decided by five-to-four votes. Kennedy has not always held the decisive fifth vote in those situations, but he has held it more than any of his current colleagues.
It is an axiom that the hardest cases, the ones most likely to split the court, usually are the most important to the law and to American society. The capacity to swing an outcome in such a case, one way or the other, is one of immense authority, but it is also one of considerable delicacy. The reality is that a hard-edged ideologue, from whichever extreme of the ideological spectrum, finds it more difficult to draw a following of even four votes for an agenda-driven outcome. In other words, moderation can have its rewards in increased influence.
In the years since the end of the “Warren Court,” with Chief Justice Earl Warren’s retirement in 1969, the court – no longer a liberal-dominated tribunal -- has moved noticeably toward the center. It was no surprise when the most influential vote was held by Powell, then by O’Connor, then by Kennedy. It is a fact that each of them was slightly more conservative than the one who yielded the mantle of influence to them, and the court has moved rightward as a result.
Conservatives of a purist inclination, of course, would not concede that the current court is on the right, after issuing such decisions as the same-sex marriage ruling, the increasing recognition of a need for protected privacy, the reduction of the death penalty to a rarity, and the preservation of the basic right to have an abortion. It is noteworthy that Kennedy was a very influential Justice in each of those developments. But he has also been a leading figure as the court unleashed hundreds of millions of dollars into the nation’s political campaigns, as it tolerated a steady erosion of the political rights of minorities, as it shielded Big Business from penetrating public regulation.
Where does Justice Kennedy, and the center of power, go from here? With the death of Justice Antonin Scalia, Kennedy and his colleagues on the bench will be working with an eight-member court, for perhaps some time in the coming months and perhaps even into next year. Where does the center repose in an eight-Justice court?
Leaving Kennedy aside for a moment, consider the reality that the court’s more liberal members are now just one vote away from controlling those close cases, while the more conservative Justices are two votes short of that kind of control. On the liberal side are Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor. On the conservative side are Chief Justice John G. Roberts, Jr., and Associate Justices Samuel A. Alito, Jr., and Clarence Thomas.
One cannot, of course, leave out Justice Kennedy in these calculations. In most of his terms on the court, he has actually been more aligned --- year in and year out – with the conservatives than with the liberals. So there is, without Justice Scalia, a real opportunity for the court to wind up evenly divided in at least some of the big cases.
(If the current lineup of sitting Justices remains intact for another year or more, it is very nearly certain, should a ninth Justice make it through the Senate, that a new member would instantly stand in a position to become the swing vote. He or she could join with Kennedy and the conservative bloc to make a majority, or with the liberal bloc, with the same effect. This point adds significantly to the importance of who gets elected to the presidency in November, installed with the power to fill vacancies on the court.)
But the dynamics of an eight-member court actually are quite different from those of a full bench of nine. Ideological inclinations have to be eased, if the work on the hard cases is to get done reasonably well. Justices who tend not to be deeply committed to one bloc or another have the chance to become more influential.
It is quite possible, for example, that a new center of power could move to a trio -- Kennedy and Breyer and Kagan. Those three are the most moderate of those in the “blocs” with which they have been aligned most often. The chances are that Chief Justice John J. Roberts, Jr., might actually welcome the work of such a bloc in helping find common ground in the hardest cases, if he has the sense – as he surely must have – that the court in recent years has been too polarized. He has lamented the public impression that the court has become a political court (although he personally has contributed to the flow of harsh language in dissenting opinions that feeds such suspicions.)
There is simply no way that the court can suspend its work, or even reduce its workload to any significant degree, while waiting for the other two branches to find a way to put a ninth Justice on the court. The controversies, including major ones, keep flowing into the court, and will have to be managed. Perhaps there will be some leaning against accepting review of some of the hardest cases, on the premise that there is too much risk in them of a four-to-four tie, with no result of consequence.
The biggest controversies the court confronts often have a profound urgency to them and, overall, it would probably be better for America if they were decided on narrower grounds rather than being put off on the chance that a nine-member court is within reach. The court well knows how to move incrementally, and that is what a vacant seat may require in the months ahead.
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