LAWFUEL – The Legal Newswire – Experienced Supreme Court lawyers figured out long ago that they had to pitch their arguments to Justice Anthony M. Kennedy and Justice Sandra Day O’Connor, who for years shared a place at the court’s center, writes Linda Greenhouse of the New York Times.
a new dynamic emerged in the court’s last term, which ended last week with Justice Kennedy standing in the middle, all alone. Not only the lawyers, but also the justices themselves, are now in the business of courting him.
While the court’s innate secrecy obscures the precise nature and extent of the courtship, two developments last week offer tantalizing hints.
One was the decision on Thursday that invalidated voluntary school integration plans in Seattle and Louisville, Ky. Justice Kennedy gave his vote to the 5-to-4 majority’s conclusion that the plans were unconstitutional. But he did not subscribe to the analysis put forward by Chief Justice John G. Roberts Jr.
Chief Justice Roberts and the dissenting Justice Stephen G. Breyer spent months trying to nudge Justice Kennedy in their respective directions. At the end of the day, neither could declare a complete victory. The ways in which they lost suggest a great deal about what it takes to court Anthony Kennedy.
The second development was the court’s stunning announcement on Friday that it would, after all, hear the appeals by two groups of Guantánamo detainees challenging their lack of access to federal court. Since the justices had turned down the same appeals less than three months earlier, this was a completely unexpected turn of events. The court did not explain itself, but five justices provided important clues when the court turned down the Guantánamo cases on April 2.
It takes four votes to accept a case, and three members of the liberal bloc — Justices Stephen G. Breyer, David H. Souter and Ruth Bader Ginsburg — said at the time that they wanted to hear these cases. Notably absent from that group was Justice John Paul Stevens, who wrote the majority opinions for the court in 2004 and 2006 that upheld the detainees’ claims to a modicum of judicial process.