The Post-Kennedy Supreme Court Is Already Here

By Garrett Epps

For those who can’t imagine the Supreme Court without Justice Anthony Kennedy, here’s some faintly good news: you don’t have to.

Though Kennedy’s resignation doesn’t take effect until July 31, the post-Kennedy court first convened on the first Monday in October 2017. The “Justice Kennedy” who sat at the right hand of the Chief Justice for the last nine months was not the Justice Kennedy who defined the court for the past 25 years.

That Elvis left the building sometime last summer.

To understand what I mean, consider some statistics assembled by the wizards at SCOTUSblog. In the past term of the court, the court decided 19 of its decisions by 5-4 votes. SCOTUSblog sorts those one-vote results into three categories—cases decided by the five conservatives voting together, which count as “conservative victories”; cases decided by the four liberals and Justice Kennedy, which count as “liberal victories”; and cases decided by scrambled lineups. The first two categories together are the court’s “ideological” cases.  

In the 2016-17 term, conservatives won 33 percent of those ideological casts. Between 2005 and 2016, the highest “conservative victory” percentage was 73 percent.

In 2017-018, the “conservative victory” percentage was 100 percent.

The only times the four liberals picked off a win was in the “mixed cases,” in which they won over a justice like Chief Justice Roberts rather than “swing vote” Kennedy. In other words, the tilt to the right has already occurred. And that tilt coincides with a fundamental, historic, and irreversible change in the court itself and its role in American life.

What happened? I have no inside sources, but my own eyes and ears told me during the past term that “Justice Kennedy” was tired. That weariness, I think, accounts for the minimalism of some of his opinions—the fact-bound resolution of Masterpiece Cakeshop, the remands in …read more

Via:: The Atlantic


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