Justice Breyer, apparently summing up the term for the liberals, lamented from the bench that "it is not often in the law that so few have so quickly changed so much." Frustratingly Supreme and Supremely Frustrating

In a Supreme Court term that will likely be remembered for the deep divisions between the justices, frustration was the common theme felt -- even often expressed -- by all but one of them.

The so-called liberal justices -- Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- went almost apoplectic upon their realization that the newly constituted Roberts Court was most assuredly and definitively veering right. 

On the other end of the spectrum, the conservative stalwarts -- Justices Antonin Scalia and Clarence Thomas -- complained that the High Court's jurisprudential turn was neither sharp nor fast enough. 

The two freshman members -- Chief Justice John Roberts and Justice Samuel Alito -- found that, upon finally sitting on the highest court in the land, their function was to essentially baby sit and hand hold a colleague two decades their senior.

The nearly unanimous frustration experienced by the other eight justices this past term was thanks to the supremacy exercised by Anthony Kennedy.  After all, Justice Kennedy was the only vote that mattered in all but two decisions issued this past term.  Indeed, in a feat acknowledged as unprecedented as far back as anyone could remember or research quickly, Justice Kennedy was on the winning side in each and every one of the 24 cases decided by a single vote margin.

For the four liberal justices, their inability to coax Justice Kennedy to swing left meant all they could do is cry from the bench by reading aloud from impassioned dissents.  For example, Justice Ginsburg dissented from Justice Kennedy' refusal to strike down the federal partial birth abortion ban, calling it a "decision so at odds with our jurisprudence [it] should not have staying power."

When Kennedy and the conservative majority concluded the First Amendment meant that the McCain-Feingold campaign finance reform law could not ban Wisconsin Right to Life from airing issue ads mentioning a sitting Senator by name, Justice Souter continued the cries.  He claimed the majority "effectively" and "unjustifiably" overruled an earlier decision despite "the understanding of the voters and Congress that this kind of ... spending seriously jeopardizes the integrity of democratic government."

And, on the last day of the term, Justices Stevens and Breyer both made sure they got to air their grievances.  Dissenting from the decision that public schools in Seattle and Louisville unconstitutionally used race in assigning students, Justice Stevens claimed it was his "firm conviction that no Member of the Court [he] joined in 1975 would have agreed with today's decision."  Justice Breyer, apparently summing up the term for the liberals, lamented from the bench that "it is not often in the law that so few have so quickly changed so much."

But the conservatives, both the longtimers (Justices Scalia and Thomas) and the newcomers (Chief Justice Roberts and Justice Alito), were no happier with the jurisprudential situation caused by the all but definitive vote of Justice Kennedy.  After all, his singular power to decide cases meant that his opinions were the only legal views that mattered.

On multiple occasions, often in the biggest cases, this meant that the conservatives could not get everything they wanted in a decision because Justice Kennedy withheld his full vote in order to control what the law would be. 

Indeed, despite months of apparent baby sitting and hand holding, Justice Kennedy still decided to author his own concurrences narrowing would-be majority opinions by both Chief Justice Roberts and Justice Alito in the two highest profile cases decided at the end of the term -- namely, the race-based student assignment cases and the case challenging President Bush's faith-based initiatives program. 

The public school cases were particularly galling since Justice Kennedy wrote a stand-alone concurrence for only himself that refused to completely close the door on race-conscious decision-making by public schools in search of "diversity."

In other cases, the decisive power wielded by Justice Kennedy led the newcomers to shy away from openly overruling past precedents despite their obvious conflict with new rulings.  This led to the open frustration of Justices Scalia and Thomas, who accused the more careful newcomers of "judicial obfuscation" through "faux judicial restraint."

Thus, not surprisingly, the only one happy with the jurisprudence of the Supreme Court this past term was Justice Kennedy, himself.  In an exclusive interview he gave the day after the last decision was handed down, Justice Kennedy was asked about Chief Justice Roberts' stated goal to get the High Court to speak with a singular decisive voice more often.  "I guess I haven't helped much," Justice Kennedy said. 

And, though interjected with a laugh, we have to wonder whether there is much more than a grain of truth behind what Justice Kennedy thought of the Chief Justice's desire.  "My initial reaction was going to be, 'Just let me write all the opinions,'" Justice Kennedy stated.

Even more than Justice Sandra Day O'Connor before him, Justice Kennedy finds that, for now and the foreseeable future, he alone reigns supreme on the highest court in the land.  For the rest his colleagues, that jurisprudential state of affairs is supremely frustrating.

July 20, 2007
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