Under the Obama adminstration?
That’s what this New York Times analysis is saying.
Chief Justice John G. Roberts Jr. emerged as a canny
strategist at the Supreme Court this term, laying the groundwork for
bold changes that could take the court to the right even as the recent
elections moved the nation to the left.
The court took mainly incremental steps in major cases concerning
voting rights, employment discrimination, criminal procedure and
campaign finance. But the chief justice’s fingerprints were on all of
them, and he left clues that the court is only one decision away from
fundamental change in many areas of the law.
Whether he will succeed depends on Justice Anthony M. Kennedy, the
court’s swing vote. And there is reason to think that the chief justice
has found a reliable ally when it counts.
“In the important cases, Kennedy ends up on the right,” said Thomas
C. Goldstein, a student of the court and the founder of Scotusblog,
which has compiled comprehensive statistics on the current term. The
two justices agreed 86 percent of the time.
Kennedy has been the one to watch, especially since Sandra Day O’Connor resigned. Especially since Carhart, and Kennedy’s chance to correct a mistake that occurred in Casey. After Kennedy wrote the Carhart decision, he has been the deciding vote.
Justice Kennedy was in the majority 92 percent of the
time and in all but 5 of the 23 decisions in which the justices split
5-to-4. Those decisions were, moreover, often divided in the expected
way: in 16, all four members of the court’s liberal wing were on one
side and all four of its conservatives were on the other.
And in between them was Justice Kennedy, the most powerful jurist in
America. He joined the liberals 5 times and the conservatives 11. That
was a significant shift to the right: in the previous term, Justice
Kennedy voted four times each with the liberals and the conservatives
in cases divided along the traditional ideological fault line.
Court watchers know Judge Sonia Sotomayor will not make the
difference some worry about – on both sides of the ideological divide.
But the Roberts Court with Kennedy in play will continue to be fascinating.
In two of the term’s most important cases, Justice
Kennedy was the on-off switch in determining the meaning of the
Constitution’s due process clause…
The Constitution, it turns out, means what Justice Kennedy says it means.
So for now, it’s really a Roberts/Kennedy Court.