Whenever Justices come and go on the Court, the mainstream media starts bloviating about the dynamics of the Court. The most recent shift in the Court occurred when the decidedly conservative Chief Justice Rehnquist and more moderate Associate Justice O’Connor were replaced by the thus-far moderately conservative Chief Justice Roberts and Associate Justice Alito.
So who has emerged as the swing vote on the Court now that Justice O’Connor has been off the Court for a year now? Justice Scalia calls himself a ‘centrist’ on religious cases, but Justice Breyer was on both majority opinions in the (in)famous Texas and Kentucky cases regarding the Ten Commandments Monument (a topic which the lovely Ann Althouse recently revived on a recent trip to Austin.)
In order to find the swing vote, one must define what it means to be a swing vote. The most standard definition usually involves a Justice who votes neither hardline conservative nor liberal and tends to join opposing factions in important cases. Right now, all evidence suggests that Justice Kennedy is the swing vote on the Court. Both liberal and conservative Justices have been groveling at his feet (even if other conservatives aren’t so fond of him) and it seems as though he has joined with the majority on 5-4 decisions more than any other Justice this term. He was on the majority in EPA, Philip Morris, and some of the earlier cases in the term. The Philip Morris case is of note because Kennedy joined with 4 other ‘moderate’ Justices in ruling ‘against’ the four most extreme Justices.
Its hard for me to say this, but the ACLU made a very good point early in one of their articles about the composition of the Court. They note that Kennedy is the swing Justice “so long as these remain the nine Justices on the high court.” It is important to remember that when people tell you that Kennedy will be the swing for years to come that, well, the Court is likely to change sooner rather than later. Justice Stevens is 86 years old, Justice Kennedy had a stint placed in his heart recently, Justices Ginsburg was diagnosed with cancer quite a few years ago, and three justices are over 70 years old (Stevens 86, Ginsburg 74, Scalia 71.) It is widely expected that Stevens will retire if a democratic President is elected in 2008. The Chief Justice and Justices Alito and Thomas are (relatively) young (52, 57, 58 respectively,) but the rest of the Justices are getting elderly.
Based on this picture, Chief Justice Roberts and President Bush are ideologically in the center of the pre-Alito Roberts Court. This picture is just chalk-full of subliminal messaging*: Ginsburg farthest to the left? Thomas second from the right? O’Connor near the middle? President Bush clearly leaning to the right while Roberts remains neutral?
*Either subliminal messaging or seating from senior to junior alternating sides, like on the bench. Probably the former.