Scott versus Scott

Welcome to our blog. Here we will debate the days most serious topics and allow users the chance to discuss the topics as well. The range of topics will vary, but one thing will remain certain, the debate will rage on. Scott Lesinski is a proud conservative and Scott Jones is a proud liberal. However, the roles will switch on some topics. Stay tuned.

Scott Lesinski is currently an actuarial associate for a large human resources and insurance consulting firm in Saint Louis. He is also an avid student of US history and enjoys following current events, with an eye to their contextual relationship to the past. He is also, in fact, a former student of Mr. Scott Jones. Scott is working toward his FSA credentials, which is akin to earning a PHD in Actuarial Science.

Scott Jones is currently a high school social studies teacher at a high school in suburban St. Louis, MO. He teaches World History, AP American Government and Senior American Foreign Policy. He has a BS. Ed. (Secondary Social Studies) from the University of Missouri - Columbia and a M.A. (History) from Southeast Missouri State University. He is currently working on a dissertation in character education to earn a Ph.D. in Educational Psychology.

Thursday, May 6, 2010

What the Stevens Retirement Might Actually Mean

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, which may well be even more so when the Justices open a new Term next October. Without Justice John Paul Stevens, who is retiring at the end of the current Term, 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.

Kennedy is moving up only a single notch in seniority. He is still outranked in seniority by Justice Antonin Scalia. So, if the Court’s eight other Justices were to split along conservative and liberal lines, and the four most likely conservative Justices attracted Kennedy’s vote, the assigning task would fall to the Chief Justice. In any divided Court with Kennedy and Scalia on the same side, Scalia would always be the assigning Justice should the Chief Justice not be on that side.

But, 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.

Would Kennedy be inclined to line up more often in coalitions with that bloc, just to get the assigning task? It might have that effect on him, at least some of the time. It is not just a ceremonial task, and can, indeed, be an opportunity leading to a more significant leadership role. Stevens surely used it that way.

But now turn to the question of the departure of Stevens, and what that means to colleagues’ attempts to influence Kennedy to join the moderate-to-liberal Justices. It is widely assumed that Stevens has become a highly influential “play-maker,” or “majority-massing” Justice, with a capacity to lead the Court toward outcomes that he would prefer. And it is assumed just as widely that his influence has worked, at least on some important cases, with Kennedy.

Perhaps the best example of that assumed influence came two years ago, in what was the Court’s most important decision yet in a “war on terrorism” case — the 2008 ruling in Boumediene v. Bush. The Court initially refused to hear the detainees’ appeal in that case, and the reason very likely was that the Court’s more liberal Justices could not be assured of Kennedy’s vote on the merits if those four voted (as they were entitled to do) to grant review. But the common belief is that Stevens kept working on Kennedy, privately, and the Court ultimately switched, granted review, and wound up deciding in favor of a new constitutional right for detainees — in a sweeping opinion written by Kennedy (and assigned to him by Stevens).

On an even more hot-button issue, Stevens played another role in reaching out to Kennedy to get the outcome he, Stevens, desired. It is widely believed that Kennedy had voted to place heavy restrictions on abortion in Planned Parenthood v. Casey during the justices’ conference after the case. However, after a few private meetings, Kennedy switched his vote, along with Sandra Day O’Connor who had also voted in favor of the restrictions, and Stevens had his majority to declare Pennsylvania’s spousal notification requirement unconstitutional. It is no coincidence that Kennedy and O’Connor’s desire to write the opinion in the case helped Stevens gets his view to become the Opinion of the court.

But Stevens will no longer be on the Court to reach out to Kennedy in situations like that, and that role is just not likely to be filled by any other Justice. Kennedy, then, perhaps would be more on his own. Would his own philosophical instincts, which in general seem to run more to the conservative than to the liberal, lead him toward liberal outcomes? That is, at a minimum, doubtful. He might well become more comfortable voting those instincts in the future.

At the same time, Kennedy might step into the role of “kingmaker.” While the Court usually tries to assign opinions to justices in numbers relatively equal, it is possible that Kennedy will try to vote on the side that will allow him to be the author of the major case opinions. This could lead Kennedy to outcomes that are more liberal. If Kennedy moves in this direction, then the opinions he authors would be more moderate than some of the liberal bloc might support, which would then lead to the possibility of more plurality decisions in such cases.

Although the Court so far has not done very much to shape the docket that it will confront when it returns in October, without Stevens, there is sure to be abundant controversy that will divide the Court. And then the “new” Kennedy Court may begin to materialize.


I would assume that once President Obama makes his nomination for the Supreme Court, we will have some discussion on the person chosen. However, the liberal versus conservative blocs on the Court will change very little no matter who is nominated. Therefore, the real discussion is how the Court will change internally, which is often more important than the ideology of any potential justice. The previous is my attempt to describe how the internal and personal dynamic of the Court could change by this Fall.

As with any of my posts concerning the Court, a special thanks to, the preeminent blog for Court watchers, for helping me with some of this analysis and fact building. In addition, the speculation concerning Boumediene and Casey are from Jan Greenburg’s Supreme Conflict and Jeffrey Toobin’s The Nine. Both outstanding books on the internal dynamics of the Court and the political processes of the Court.


  1. It seems to me that what you're saying is that Stevens' retirement is a good thing for conservatives. Sweet!

    In all seriousness, I suppose we'll have to wait to see who Obama nominates. Its sure to be another super-progressive. Probably a woman. Maybe a black woman.

    I wonder if he'd nominate an asian woman. I mean, it seems that asians are the one race with which liberals don't really care to play identity politics. Curious...

  2. See, I read it as either...

    1) Good for conservatives.


    2) You're just buttering us up so you can just say the same things you did about Sotomayor being "not that bad."

  3. ???

    Actually the purpose of the post was to talk about Justice Kennedy and where is new role on the Court will be.

    President Obama WILL nominate someone of similar ideology to Stevens (even though Stevens could surprise - see his dissent in Texas v. Johnson). This means the ideological makeup of the Court will not change. And that is probably good for the country.

    My point is that Kennedy becomes even more of a wild card in close decisions. Will he become more conservative without Stevens' influence? Or, will he become more liberal as he would have more personal influence that way?

    We don't know the answer. It is just an interesting part of the internal makeup of the Court that always occurs everytime there is change.

    Wardo - I meant nothing more than that.

  4. On another point you made Wardo - I was buttering you up to say that Sotomayor wasn't that bad...

    I am always amused that conservatives can't possibly see another possible side to an argument. Conservatives have no ability to see the Realist Intepretation of the Constitution as valid. Never mind Alexander Hamilton was the first such scholar to embrace it. This intepretation calls for us to try to figure out what the Founders would do on the modern issue.

    Look, I understand the Formalist Interpretation (sometime misnamed Originalism) and its attempt to try to figure out what the Founders meant and apply that to the modern issue. It is a valid way to intepret the Constitution since Thomas Jefferson was the first to embrace it.

    Why do conservatives so completely disregard the Realist argument? It is a valid way to interpret the Constitution and an important part of the discourse on the Constitution.

    However, if conservatives get their way, the diversity of thought and ideas would suffer as one valid philosophy would be completely eliminated.

  5. My main problem with the realist view, Scott, is that it seems like one of the main thrusts of that argument is in using (or I'd say abusing) the commerce clause and the 14th amendment to literally grant government unlimited power - such as the power claimed by Nancy Pelosi in her Health Control Bill.

    We have to remember the entire point - the whole reason for being written - of the Constitution was to LIMIT the power and influence of government on the lives of individuals.

    This seems to be the main difference between the two viewpoints. "Realists" - or those who have at least latched onto that mantle - claim that government needs to evolve along with the constitution. They seem to want it to DO more stuff for the citizenry, which again, was NOT why the document was written.

    All that being said, how about Elena Kagan eh?

    She's a mirror image of Obama - no experience on any court, thinks the Constitution should be used to benefit certain people - not just the wealthy - implying that it currently isn't fair.

    But she is getting crappy reviews in many liberal news outlets for various reasons. What is your take?

  6. Kagan is interesting for Republicans. Your attack on no experience mirrors what the Republicans in the Senate say - even though they celebrated the lack of judicial experience of Harriet Miers. Don't forget, William Rehnquist had no judicial experience before becoming a justice in the early 1970s.

    She's alright. She seems to be pretty conservative when it comes to criminal procedure and liberal when it comes to individual liberties. Not a lot is known about her, but that is fine.

    On the realist view...She seems to be in that school even though nothing is known about her.

    Also - I just hate the way that conservatives attack realism as though it is only believed by stupid and ignorant people who have believed lies. That's Rush's basic view. Some very intelligent people abide by it just as some very intelligent people abide by Formalism. They are competing judicial philosophies. Both valid and both capable of intepreting the document they way it was intended.

    Here is a cognitive exercise. Take abortion/privacy and see how the Founders would view it. John Adams, Alexander Hamilton, George Washington, Ben Franklin, Thomas Jefferson.

    My views...

    John Adams - with his Puritan background would oppose abortion, but support privacy - for men only though.

    Alexander Hamilton - no opinion on abortion, but would seek absolute privacy for businesses. No concern about the privacy of the individual.

    George Washington - supporter of privacy, but I've got no clue on abortion

    Ben Franklin - clear supporter of abortion and privacy.

    Thomas Jefferson - absolute supporter of privacy and most likely supporter of abortion.

    It is important to note, that most of the Founder who I claim would support abortion would probably do so because it would be impossible to enforce a restriction without compromising privacy. Jefferson could possibly support abortion simply because of his rejection of religious beliefs influencing political decisions.

    What do you think...This will challenge the Realist and Formalist schools when you try to figure out the beliefs of the individual Founders.