Who’s in Charge?

In her blog Legalities, Jan Crawford Greenburg of ABC discussed what this year’s cases tell us about the future of the Supreme Court and who’s in control. Greenberg pointed out that numerous commentators have made a big deal out of Justice Kennedy’s new position on the Court following the departure of Sandra Day O’Connor. “Some are going as far as to call it the ‘Kennedy Court,’ just as people used to refer to the old Court, led by Chief Justice William Rehnquist, as the ‘O’Connor Court.’” However, Greenburg disputed the appropriateness of this label. She believes that the new Court most clearly represents a struggle between the vision of Justice Stevens and the new Chief Justice Roberts:

This is a Supreme Court engaged in a fierce battle of ideas, a big-picture struggle over the role of the Court and the direction it’s going to take. When you talk about long-range influence over the law, it’s the ideas that define the Court. It’s a Court in struggle—not for the vote of one justice, but for an intellectual mooring. It’s the Roberts Court v. the Stevens Court.

And Greenburg believes that, in this struggle, the vision of the chief justice will prevail. She pointed out that Justice Kennedy is more conservative than Justice O’Connor was and that he is less inclined to try to “hold back the majority with a split-the-difference approach.” She went on to suggest that the chief justice’s proclaimed love of judicial minimalism could make Justice Kennedy less important:

Roberts is trying to shift the debate inside the Court. His position is that the Court--instead battling for one justice’s vote and swinging for the fences in the big cases--should take a more restrained and narrow approach.

If he could persuade the Court to write more narrowly, it would minimize Kennedy’s role. That would make the Court’s jurisprudence more coherent and clear, with better direction and guidance for lower courts and litigants.

That would be the Roberts Court.

While we would like to flat-out disagree, there certainly are indications that Greenburg's assessment may not, unfortunately, be too far off the mark. However, as we've pointed out in the past, Robert's minimalist rhetoric, while appealing, is generally nothing more than just that--rhetoric. He has not hesitated to issue far-reaching decisions and dissents that advance the right wing agenda. The next few decades will tell us just what this will mean for the nation and our individual rights. We do not think the vision of the Roberts Court will be “restrained” in its impact.