By Marshall H. Tanick
BridgeTower Media Newswires
“Judges are like umpires … (They) don’t make the rules, they apply them.”
John Roberts at his confirmation hearing (Sept. 12, 2005)
Following the retirement last year of Supreme Court Justice Anthony Kennedy, it was widely anticipated that President Donald Trump’s replacement, who turned out to be Brett Kavanaugh, would solidify a sharply divided tribunal, with five Republican appointees steering it in an even more conservative direction over the protestations of their four Democratic-appointed liberal colleagues.
Others suggested that the vector might not move that vividly, as Chief Justice John Roberts would step into the departed Kennedy’s role as the “swing vote” balancing the tribunal’s two wings, just as the retired jurist did when the prior “swing” jurist, Sandra Day O’Connor, stepped down 12 years earlier.
It turns out that both prognostications may prove prescient.
Kennedy was, to be sure, the quintessential tie-breaker. While the plurality of the rulings of the U.S. Supreme Court are unanimous, upwards of one-third, a relatively high number are decided by a single vote. These 5-4 decisions mistakenly seem to be increasing. But they are actually relatively stable, usually comprising anywhere from 15 percent to 20 percent of the tribunal’s annual 70- to 75-case output.
Their frequency seems to be rising because the outcome of so many of the high-profile cases like those involving First Amendment free speech and religious liberties, gun safety, reproductive rights, LGBT issues, and others are determined by a single vote and, in some years, the number of single vote cases has approached the number of unanimous ones.
But there’s no mistaking that Kennedy was unusually pivotal in his 30 years on the court, nearly always siding with the conservative wing in business regulation, employment, and criminal law cases, joining the liberals in abortion and gay rights matters and some other “social” issues, and functioning as a wild card on other matters.
The centrality of his role was reflected in the 2006-07 term of the high court. That year was marked by a record number of 24 cases, about a third of the docket, decided by 5-4 splits — and Kennedy remarkably cast the decisive vote in all two dozen of them.
Indeed, his prominence in breaking deadlocks was so pervasive that lawyers arguing cases before the tribunal often tactically pitched their arguments in ways they thought would particularly appeal to him at the expense of giving ground to positions amenable to some of the other jurists. It was commonly felt among Supreme Court practitioners and other savants that winning Kennedy’s vote represented a path to prevailing.
The court unquestionably has, in the year-plus since his departure and replacement by Kavanaugh, Trump’s second appointee, moved more to the right, a progression going back decades, even preceding Kennedy’s placement on the bench. This has been reflected most glaringly in marquee cases upholding executive power involving immigration and foreign affairs, along with some lesser matters.
But the other prong of the prognostication pair, the chief justice’s move to the middle, also has been perceptible, even as recently as a few weeks ago.
The shift was foreshadowed at the end of the 2018-19 term in June, when the chief justice broke a tie in the bitterly contested census case, Department of Commerce v. New York, in which he authored the majority opinion in a 5-4 decision that effectively negated the Trump administration’s attempt to place a citizenship question on the upcoming 2020 census form.
His doubting the candor of the administration’s rationale for seeking to include the inquiry, which opponents regarded as a means of creating a racially skewed undercount of immigrants, was a rebuke to the president’s legal position and political posture as well.
He may be doing it again. As the jurists took up their first foray in nearly a decade into the thicket of the Second Amendment right to “keep and bear arms,” the chief justice seemed to be leaning against striking down a quirky New York City ordinance barring the transportation of guns by lawful owners in that municipality outside of city limits. While the city has repealed the law and announced it would not enforce it any longer in the face of a potent Second Amendment challenge, the gun control detractors bringing the case have continued to press for a determination by the high court, hoping for a broad ruling that would solidify recent gains made by Second Amendment advocates and, perhaps, even extend the underpinnings of those cases.
Fearing such an outcome, the liberal wing of jurists hearing the case of New York State Rifle & Pistol Assn v. City of New York earlier this month, led by Justice Ruth Bader Ginsburg, just out of a hospital bed, again, implored refraining from adjudicating the merits of the now-defunct law because the case was moot.
Two of the conservative jurists tugged the other way, urging a decision, presumably adverse to the law and gun control proponents generally.
Into the vortex stepped the chief justice, asking a couple of questions that suggested he was leaning in the liberals’ direction, disinclined to address the merits of the case and let the case evaporate. One elicited the promise by the attorney defending the city that gun owners in Gotham would not be targeted now that the law is no longer on the books; the other expressed his concern, which the city’s counsel satisfied, that gun owners could still seek money damages for past deprivations before the measure was repealed.
If the chief justice does, in fact, effectuate that stance when it comes time to voting on a decision, the liberals likely will prevail, dodging the bullet, so to speak. Had the court, with Roberts in the camp of the conservatives, upheld the administration’s position in the former, the potential undercount could have affected the enumeration and number of representatives the state will have in Congress, the apportionment of districts in the House of Representatives and both bodies of the legislature, the composition of those units, and various federal aid formulae, although not as decisively as in some southern and western states with larger immigrant populations.
The meandering to the middle by Roberts is not totally uncharacteristic or surprising. In his confirmation hearing in 2005, describing his anticipated position in the bench as a neutral “umpire,” he noted his “particular obligation to try to achieve consensus,” a posture that he albeit failed to reach in the following year, with the all-time record of 5-4 split rulings.
But he also has been viewed as an “institutionalist,” rigorously safeguarding the credibility of the court as an apolitical adjudicative body. His shifting from side-to-side, as a latter day Kennedy, or O’Connor before him, would be consistent with that tenet.
But casting one as a so-called institutionalist to suggest non-partisanship in doling out justice may be deceptive. That’s what was said of William Barr when he was named Attorney General earlier this year by President Trump.
It hasn’t quite worked out that way.
Marshall H. Tanick is an attorney with the law firm of Meyer Njus Tanick in Minnesota.