Legal Commentary

The Kennedy Court Comes of Age

By Jonathan H. Adler

As if Justice Kennedy did not wield enough influence on the Supreme Court?s decisions already, SCOTUSBlog?s Lyle Denniston explains why Justice Stevens? retirement is likely to increase the swing justice?s effect on the Court.  This is so for two reasons.  First, Justice Stevens? retirment means there are only two justices on the Court with seniority over Justice Kennedy ? Scalia and the Chief Justice.  As a consequence, Justice Kennedy will be the assigning justice more often than in the past, particularly where he joins the Court?s liberal justices and the conservatives dissent.  Second, Justice Stevens was particularly effective at wooing Justice Kennedy ? and could use his power to assign majority opinions to himself or Justice Kennedy ? to keep Justice Kennedy on board in close cases.  In Justice Stevens? absence, it?s not clear what other justice can play this role.  As Denniston explains, ?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.?  This is significant because in cases like Boumediene and Massachusetts v. EPA, it appears that Justice Stevens was able to sway Justice Kennedy to forge a liberal majority.