High Court Justice John Paul Stevens is retiring.
And now, the stage is set for a subtle shift and the potential change for history in the making.
What’s the big deal, you ask? Well… You probably would not ask such a question – especially as we approach a weekend. But, I, on the other hand, spend endless and seemingly sleepless nights pondering implications of such things (it’s all part of being Jeffersonian, and a Prudent and Optimistic Gentleman). What is not widely understood is that Justice Anthony Kennedy, who already decides whether liberals or conservatives win the Supreme Court’s most closely contested cases, is about to take on an even more influential behind-the-scenes role.
Kennedy will inherit Stevens’ power to choose the author of some court opinions.
I am on my toes!
Why is this important, you finally ask?
The crafting of these opinions has historically been used to subtly shape a ruling or preserve what is, almost always, a tenuous majority. In fact, I feel this creative utilization of the nuance is at the very core of what Thomas Jefferson had in mind as he outlined the structure of the US Constitution – and, what it is capable of in the right minds.
For example: An unwritten high court rule gives the senior justice in the majority, most often the chief justice, the power to assign opinions.
NOTE: The overall balance of power on the court is unlikely to change, with President Barack Obama’s choice of Elena Kagan to replace the liberal-leaning Stevens. So, today, this change might keep the court’s most liberal justices from writing some of its biggest decisions. When the liberals win an ideologically driven case by, say, a 5 to 4 vote, the court’s two senior justices – currently Chief Justice John Roberts and Justice Antonin Scalia, both conservatives – are sure to be on the losing side.
With Stevens gone, Kennedy is now next in line to swing opinion by assigning language to support or deny.
It’s both insidious and brilliant – and, a great example of why people refer to the nebulous “they”. This makes Kennedy potentially one of “them”.
You’ve likely read other snippets in this Blog when and where I’ll refer to something said by former Bush administration solicitor general, Paul Clement. I called him late last Friday to ask his opinion of these current events. He was quite busy with a matter related to his boat. However, he did offer that putting the power to assign opinions in Kennedy’s hands is: “…the single most important dynamic change.” brought on by Stevens’ departure.
David Garrow, a Cambridge University historian who has written about the court, said the 74-year-old Kennedy already writes a disproportionate share of the court’s big decisions and will have even more chances to do so now because he can assign opinions to himself.
Will you sleep now, reader?
This is the nexus point where the Heterodox has his day. So, look for me sustaining an opinion in this matter in the weeks and months to come. Ayn Rand would carefully alight one of her unfiltered cigarettes, fix you with a steady gaze, and then point the cigarette at you to emphasize her point that the potential for manipulating the direction of rules in a manner that disallows balanced and informed decision-making is not tolerable. And, I’m not clear this is what Thomas Jefferson had in mind. He might be spinning so fast in his grave that the earth could well remove itself from it’s axis.
But, maybe not if we remain alert.
Peace be to my Brothers and sisters.
Brian Patrick Cork