Monday, August 20, 2007

Future of the Supreme Court = Justice Kennedy

On July 11, Legal Times held a panel discussion at the Georgetown University Law Center to analyze the Supreme Court's 2006-07 term. One of the panel members was Thomas Goldstein, who argued the KSR case for the Respondent Teleflex (and who is also an author of the SCOTUS blog). When asked about the direction the SCOTUS has taken, and the future direction of the Court, Goldstein responded that the key lies with Justice Kennedy:

In terms of who is in charge, Justice Kennedy is in charge. Don't have any doubts about this. If Justice Kennedy ever tells you you must do something, you must comply. In the 24 5-4 decisions, he was in the majority in all of them, every single one. In the 72 cases decided this term, he was in the majority in 70. Two times, I don't know, he just felt like dissenting. You know, just to mix it up a little bit.

It is his world, and you just live in it. And that is a dominant, dominant theme. We were unable to identify in modern historical terms any sort of parallel. If you look to Justice O'Connor, for example, and we used to think of her as holding sway in the Court, she would be in the majority in roughly two-thirds of the 5-4 decisions over the last 10 years. Justice Kennedy, for his part, by the way, was in the majority one-half to two-thirds of the 5-4 decisions over the last 10 years. Suddenly, it is all of them.

There has not been a term since the mid-1960s that a justice dissented two or fewer times, and so that really gives you a sense that Justice Kennedy's vote is more centrally important than any other justice in the history, the modern history, of the Supreme Court.
Read the edited transcript from here (link)

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