The Court shifts to the right?

This is a good article about the voting trends of the Supreme Court Justices this past term and the role of swing voter Anthony Kennedy. The writer also makes a good case for the political skills of Chief Justice Roberts in setting the stage for future bigger doctrinal shifts. Some comments:

1.  I find the observation that Alito is becoming the “most conservative” justice puzzling, especially because the declared reason is that he supposedly “has found room to the right” of the Chief Justice. That reason implies that the Chief has been the most conservative member of the Court. Allowing the use of the malleable term “conservative” as a short-hand designation for a certain view of the Court’s role and of the Constitution, I would have thought that Scalia and Thomas were easily the most “conservative.” Thomas, especially, dissented in the Voting Rights Act case, but not because he thought the Court had been unduly narrow in its interpretation of the statute in allowing the Texas water district to opt out. Rather, Thomas wanted to go well beyond the Court and to declare the whole act unconstitutional. In the strip-search case, Thomas alone would have upheld the constitutionality, though not the wisdom, of the search. So, I’m not convinced that Alito is the most conservative justice, with the Chief second, based on some unspecified concurring opinions in criminal procedure cases in a single term of the Court.

2.  Similarly, with all respect due a Stanford law professor, I find risible the opinion that Scalia and Thomas are “in play,” based on a single case that, at most, reflects an appropriate adherence to their view that the Constitution’s original understanding should, unless amended, guide their interpretation of the law. That opinion also flies in the face of the article’s main theme that Roberts is building a coalition and jurisprudential foundation for a more significant substantive shift to the “right,” and of Thomas’s opinions in the Voting Rights Act case and the strip search case. Roberts’s quest would be immeasurably more quixotic were Scalia and Thomas “in play.” Moreover, Justices “in play” will show that tendency within a few years of joining the bench. It is highly unlikely that a couple of battle-tested two-decade-or-so veterans whose jurisprudence is particularly associated with strong principles and who have resisted such superficial influences would finally succumb.

3.  Another point raised by the article is an implied refutation of the criticism from liberals such as Supreme Court “reporters” such as Slate’sDahlia Lithwick that “originalists” of the Scalia type are really acting as advocates for a political point of view whose opinions therefore have no more claim to intrinsic legitimacy than the result-oriented liberalism (or, more rarely, conservatism) of the “living Constitution” school. The writer is to be commended for putting that canard to rest, especially in a paper with an ideological vector decidedly against “originalism”: ”Justices Scalia and Thomas are apt to follow what they understand to be the original meaning of the Constitution, even when the consequences might not align with their policy preferences. In Melendez-Diaz v. Massachusetts, for instance, Justices Scalia and Thomas joined three members of the court’s liberal wing to say that the Constitution’s confrontation clause requires crime laboratory analysts to appear at trial rather than submit written reports.”

I am not as rigid (or principled) on that point as Thomas, certainly, as I have a stronger adherence of “evolutionary constitutional custom.” But their approach is consistent and merits respect that most writers, other than the author of the article, are willing to grant.

4.  The focus on Justice Kennedy and the conclusion that this is Kennedy’s Court is superficially correct, in that he tends to be the swing vote in the many 5-4 decisions of the Court. That pivotal position drives the media and legal academics’ theme of his role and stature. But I think that is wrong in some ways. First, the author himself focuses on the skills of Roberts in putting together doctrine and votes for future decisions. He is planting seeds (or landmines, if one prefers) for future doctrinal changes. Some of these will bear fruit, even if not all will. That would suggest that this is, or is fast becoming the court of Roberts, the master political strategist.

Second, this may be Kennedy’s Court in the immediate sense, but it is not likely it will become known as such. Even if one were not to stick with the customary designation through the Chief’s name, it is more likely that the future will find this to be the Scalia Court. Justices play tactical or strategic roles. Kennedy is looking for immediate influence through his swing position in particular cases. But to do so, he must engage in narrow and technical reasoning and incremental and ad hoc constitutional jurisprudence to avoid the appearance of a purely result-driven approach, as he veers to the left and then the right. This is not the stuff of a lasting legacy, though it has the institutional merit of modulating the Court’s course and reducing the ferocity and likelihood of political attacks.

Scalia, on the other hand, is a jurisprudential strategist who engages in the Long March through the Court’s constitutional battlefields. His opinions, though often concurrences or dissents, lay the groundwork for a future adoption of his principles. He works through bold assertions, opulent analysis of supporting historical materials and constitutional philosophy, and powerful writing. So, while Kennedy’s decisions and influence likely will wane quickly (as have his predecessor’s as swing vote, Justice O’Connor), future Courts can mine the Scalia opinions for usable arguments for years to come.

Thomas is a jurisprudential strategist as well, but one that always appears to be refighting the last war. One gets the sense that he is more of a law professor wanna-be, who likes to point out the Court’s previous (and current) doctrinal errors and how the case should be decided without those errors.

5.  While I find his argument that the Chief is beginning to hit his stride in building coalitions on the Court, his real test will come when the Court begins to consider executive power cases connected to interrogation, detention, and rendition of terror suspects by Bush administration officials. While the Iqbal case (dealing with burden of alleging monetary liability of high level officials for detention practices by underlings) this term was encouraging because it rejected plaintiff’s lawsuit, it was also a somewhat inconclusive case. If a more direct case of detainee rights, akin to Hamdan in 2006 or Boumediene in 2008 arises, we shall see whether the Chief can nudge Kennedy in the direction of the proper result, at least, even if it is unlikely that Kennedy can be swayed to the point of supporting a robust statement of executive power.

6.  Perhaps the Court’s move to the right will have staying power. Kennedy certainly is more comfortable there, even if it often seems hard for him to express a consistent reason therefor. The last couple of years of Kennedy’s flirting with more liberal positions may have been an aberration due to the particular cases. With the White House now in the hands of someone with strong left-leaning inclinations, and the Congress dominated by the barely-sane Left of Pelosi, Waxman, Conyers, Durbin, Franken, et al., Kennedy may see too much government in general and too little in national defense as the problem, rather than the other way around. Another theme to this article is that the Court moves right as the political branches move left. Actually, the Court has not moved significantly, if at all. But when the other branches lurch left, sitting still may seem like a big shift to the right