SCT Series: Justice Kennedy and the Roberts Court

Earlier this week, the Wall Street Journal ran a story discussing Justice Kennedy's role on the Roberts Court. The article stressed Justice Kennedy's presumptive position as the new "swing vote" on a post-O'Connor Court. Similar articles appeared this week at the Christian Science Monitor, CBS News, and numerous other places.

So, is the common wisdom correct? Is Justice Kennedy the new O'Connor? If last Term's voting patterns are any indication, it appears he just may be. Of the 69 full, formal decisions issued by the Court last term, Justice Kennedy voted with the majority in 61 of them. In the majority opinions he authored himself, he showed himself to be firmly on the ideological fence: of the nine majority opinions he wrote, four generated liberal outcomes, four generated conservative outcomes, and 1 was ideologically uncodable (for a list of these cases and information about how the ideological coding was done, see here).

More importantly, Justice Kennedy also was in the majority in almost all of the Term's most significant cases. Measuring the importance of contemporary cases is tricky; however, by examining media coverage, counting amicus briefs, and exercising some editorial judgment, I compiled a list of the 16 most "important cases" decided by the Court last Term (the list, and more information about how I developed it, is available in Appendix B here). Justice Kennedy was in the majority in 15 - all but one - of these cases.

Justice Kennedy also wrote the majority opinion in a startling 25 percent (4) of these cases. No other justice wrote more than 2 majority opinions in this set of cases. (In the Term's cases as a whole, the workload was much more evenly divided, with each of the full-term justices writing between 8 and 13 percent of the opinions). Additionally, each of the important cases in which Justice Kennedy wrote the majority opinion was itself a close case, decided by either a 5 to 4 or 6 to 3 vote. Finally, the outcomes in these narrowly decided, important cases were - once again - ideologically divided: Justice Kennedy's majority opinions in important cases generated 2 conservative results; one liberal result; and one case, United Latin American Citizens v. Perry (the Texas gerrymandering case), which was ideologically uncodable because the two main holdings of the case reached ideologically opposing results.

Voting records from one Term cannot, of course, tell us very much about the nature of a Court or the role individual justices will play on it. But if the Roberts Court's first Term does turn out to be indicative of the future, Justice Kennedy will indeed by the one to watch.