Amanda Sherman - Chief Justice & the Swing Vote

8/8/2019 Amanda Sherman - Chief Justice & the Swing Vote

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The Chief Justice and the Swing Vote:

Viewing the Voting Relationship Between John Roberts and Anthony Kennedy

Through the Lens of a Legal Realist

Amanda Celeste Sherman

[L]ong ago, the legal realists exposed the myth of formalism by demonstrating the inevitability

of judicial discretion. Especially in constitutional law, formalism is inadequate. Balancingcompeting interests is a persistent feature of constitutional decision making.

1

I. Introduction and Framework

In his poem Ulysses, Alfred Lord Tennyson writes, I am a part of all that I have met.2

These words resound with those who read them because of the general understanding that human

beings are a compilation of lessons learned experientially. Past happenings shape both present

and future decisions: this is the human experience. While there is perhaps a comfort in saying

that the role of a judge is to apply the facts to the law and consequently reach the correct result,

this formula is complicated when reasonable people can differ about what law governs and what

facts are relevant.3 [A]ny first year law student knows that judges make law constantly. The

first year students common law subjects are almost entirely judge-made law.4

Justice

Benjamin Cardozo aptly described judicial decision-making when he said, There is in each of

us a stream of tendency, whether [we] choose to call it philosophy or not, which gives coherence

1

Erwin Chemerinsky, Seeing the Emperors Clothes: Recognizing the Reality of Constitutional Decision Making, 86

B.U.L.REV.1069,1071(2006).2 Alfred Lord Tennyson, Ulysses, in ALFRED LORD TENNYSON,IDYLLS OF THE KING AND A SELECTION OF POEMS

323(2003).3See generally BENJAMINN.CARDOZO,THENATURE OF THE JUDICIAL PROCESS (1921)(providing realistic insight

into the judicial process).4 Chemerinsky,supra note 1, at 1069.


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and direction to thought and action. Judges cannot escape that current any more than other

mortals.5

It is with this foundation that this paper examines the voting relationship between Chief

Justice John G. Roberts and Associate Justice Anthony Kennedy in the Supreme Courts 2007

and 2008 terms. The purpose of this paper is not to question the integrity of these Judges, but

rather quite the opposite. This paper aims to provide a better understanding of the U.S. Supreme

Court by examining a small sampling of the voting record of the Chief Justice and an Associate

Justice who, whether justifiably or not, has become known as the Courts swing vote.6

The

resulting information will be analyzed with the understanding that judges do not and cannot

robotically apply law to facts, and therefore, are likely guided by something akin to the streams

of tendency of which Justice Cardozo speaks.7

II. Judges Background

Before examining the recent voting records of Chief Justice Roberts and Justice

Kennedy, it is necessary to understand their background. The following section offers a brief

summary of their lives and careers before they took their respective positions on the Court.

A. Chief Justice John G. Roberts

John Glover Roberts was born in 1955 in Buffalo, New York.8

He is married to Jane

Sullivan Roberts, who is also an attorney in the Washington, D.C. area, and the two now have

two children.9

His father worked as an executive for a steel company and his mother was a

5CARDOZO,supra note 3, at12.

6See, e.g., Tara Leigh Grove, The Structural Case for Vertical Maximalism, 95 CORNELL L.REV.1,1(2009);Ted

Gest, Outlook; The Court, U.S. NEWS & WORLD REP., July 15, 1996, at 12; Supreme Court Considers Juvenile

Sentences, ST.LOUIS POST-DISPATCH,Nov. 10, 2009, at A6.7 CARDOZO,supra note3, at 12.8

LISA TUCKERMCELROY,JOHN G.ROBERTS,JR.:CHIEF JUSTICE 8(2007).9 Jennifer L. Jack, 10 Things You Didnt Know About John Roberts , U.S.NEWS &WORLD REP.,Oct. 1, 2007; see

Hanna Rosin,Nominees Wife is a Feminist After Her Own Heart, WASH.POST, July 22, 2005, at C01.


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homemaker.10

At the age of eight, his family moved to Long Beach, Indiana, where he spent the

remainder of his formative years.11 He was raised in the Roman Catholic faith, attending an all-

male Catholic high school.12

In 1976 Roberts earned his B.A. from Harvard College, graduating

summa cum laude.13

He earned his J.D. from Harvard Law School in 1979, where he served as

managing editor to the Harvard Law Review and graduated magna cum laude.14

Upon graduation, Roberts took a clerkship position with Judge Henry Friendly of the

U.S. Court of Appeals for the Second Circuit.15

The following year, Roberts participated in

another clerkship with Associate Justice William Rhenquist at the United States Supreme

Court.

16

After the completion of that clerkship, Roberts served as special assistant to the U.S.

Attorney General and later as Associate Counsel to the President during the Reagan

administration.17

Roberts then began working as an associate in the Washington, D.C. firm of Hogan &

Hartson where he remained for a year before being elected a general partner.18

He then left the

firm to serve in the role of Deputy Solicitor General for several years before returning to private

practice in 1992.19 Over the course of his career, Roberts argued before the Supreme Court

thirty-nine times.20

Roberts was highly regarded as one of the best advocates in the history of

10Id.11Id. at 8.12See Jack,supra note 9.13 Id.; U.S. SUPREME COURT, THE JUSTICES OF THE SUPREME COURT,www.supremecourtus.gov/about/biographiescurrent.pdf [hereinafter JUSTICES].14 JUSTICES,supra note 13;The Oyez Project, John G. Roberts, Jr., http://www.oyez.org/justices/john_g_roberts_jr

(last visited Nov. 3, 2010) [hereinafterJohn G.].15

John G., supra note 14.16

Id.17

Id.18Id.; U.S.SENATE COMM. ON THE JUDICIARY,JOHN G.ROBERTS,JR.ANSWER TO SENATE JUDICIARY COMMITTEE

QUESTIONNAIRE,PART 1[hereinafter QUESTIONNAIRE 1].19

John G., supra note 14.20 Press Release, The White House, President Announces Judge John Roberts as Supreme Court Nominee (July 19,

2005), available athttp://georgewbush-whitehouse.archives.gov/news/releases/2005/07/20050719-7.html.


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the court and, through his multiple appearances at oral arguments, likely gained a rare insight

into the workings of the Court and the thought processes of the individual Justices that sat on the

bench.21

He wrote an article in 1997 discussing strategies for effective oral argument, where he

said, Be particularly skeptical of advice on how to argue an appeal from appellate judges . . .

most judges give good advice on how to win a winning case . . . . Judges have no interest in the

court reaching a wrong result, but fifty percent of clients do.22

In 2003, President George W. Bush nominated John Roberts to serve on the U.S. Court of

Appeals for the District of Colombia Circuit.23

Roberts remained in this position until July of

2005

24

when President Bush nominated him to fill Justice Sandra Day OConnors soon to be

vacant seat on the Supreme Court.25

This changed, however, when Chief Justice Rhenquist

passed away in early September: President Bush then changed Roberts nomination to that of

Chief Justice.26

The confirmation hearings began right away, as President Bush announced his desire to

start the October Term with a new Chief.27 Roberts was eventually confirmed by a vote of

seventy-eight to twenty-two.28 Roberts took his seat on September 29, 2005, making him the

seventeenth Chief Justice of the Supreme Court and the youngest to fill the position since John

Marshall.29

21See John G. Roberts, Thoughts on Presenting an Effective Oral Argument, SCH.L. IN REV.7-1,7-1(1997);Sandra

Day OConnor, John Roberts, TIME, April 30, 2006, available athttp://www.time.com/time/magazine/article/0,9171,1187207,00.html.22 Roberts,supra note 21.23 JUSTICES,supra note 13.24

Id.25

Peter Baker,Bush Nominates Roberts as Chief Justice; President Seeks Quick Approval with Another Seat Left to

Fill, WASH.POST,Sept. 6, 2005, at A01.26 Baker,supra note 25.27Id.28

Charles Babington & Peter Baker, Roberts Confirmed as 17th Chief Justice: Senate Republicans are Unanimous,

Democrats Evenly Split, WASH.POST,Sept. 30, 2005, at A01.29 JUSTICES,supra note 13; Bakersupra note 25.


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B. Associate Justice Anthony M. Kennedy

Anthony McLeod Kennedy was born in Sacramento, California in 1936.30 His father was

a lawyer and his mother was a teacher and active in civic activities in the community.31

In 1958

he earned a B.A. from Stanford University and the London School of Economics.32

Kennedy

then went on to attend Stanford University where he graduated cum laude.33

Upon graduating

from law school, Kennedy worked as an associate for a San Francisco firm, but after his fathers

death in 1963, he returned to Sacramento to continue his fathers practice.34

Around this time, Kennedy married Mary Davis and the two eventually had three

children.

35

Kennedy also began teaching Constitutional Law at McGeorge University, where he

remained for over twenty years.36

Kennedy was an active member of the Republican Party

through which he met and befriended Edwin Meese, who would eventually play a role in

Kennedys nomination to the Court.37

Kennedy participated in politics in various roles,

including lobbying and helping President Reagan (who was the Governor of California at the

time) draft a plan to cut taxes and spending.38 Kennedy remained politically active until 1975

when President Gerald Ford appointed him to serve on the United States Court of Appeals for the

30 JUSTICES,supra note 13.31 Danielle Burton, 10 Things You Didnt Know About Anthony Kennedy , U.S.NEWS &WORLD REP.,Oct. 1, 2007;

The Oyez Project, Anthony M. Kennedy, http://www.oyez.org/justices/anthony_kennedy (last visited Nov. 3, 2010)

[hereinafterAnthony M.].32

JUSTICES,supra note 13;Anthony M., supra note 31.33

Anthony M., supra note 31.34

Burton,supra note 31.35Id.36 JUSTICES,supra note 13.37

Anthony M., supra note 31.38Id.


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Ninth Circuit.39

Facing a court comprised of many liberal judges, Kennedy took on the role as a

leader of the conservative minority.40

In late 1987, President Reagan nominated Kennedy to the position of Associate Justice of

the Supreme Court, to fill the seat left vacant by Justice Powell.41

Kennedy was the third of the

Presidents nominees to fill the seat as Reagans first two nominees were unsuccessful: Robert

Bork was not confirmed by the Senate after heated confirmation hearings and Douglas Ginsburg

withdrew his name from consideration after allegations of prior marijuana use surfaced.42

Kennedy was unanimously confirmed by the Senate, however, and took his seat on February 18,

1988.

43

III. Voting Analysis

This study focuses on the divided opinions of the Supreme Court in the 2007 and 2008

Terms. Divided cases were analyzed to examine the patterns that emerge, if any. The

methodology for doing so is explained in the proceeding text and footnotes. A focus is placed on

close cases or cases where either Chief Justice John Roberts or Associate Justice Anthony

Kennedy wrote a dissent. This focus is taken with the hope that these cases more accurately

depict areas where the Justices have particularly strong feelings,44

rather than cases where a large

majority of the Court was in agreement.

39Id.40 Maureen Hoch, Profile: Justice Anthony Kenned,

http://www.pbs.org/newshour/indepth_coverage/law/supreme_court/justices/kennedy.html (last visited Nov. 3,

2010).41

Linda Greenhouse,Reagan Nominates Anthony Kennedy to Supreme Court, N.Y.TIMES,Nov. 12, 1987, at A1.42

Anthony M., supra note 31.43

JUSTICES,supra note 13; Hoch,supra note 40.44 See C-SPAN: Justice Scalia Interview (C-SPAN television broadcast Oct. 9, 2009) (transcript available at

http://supremecourt.c-span.org/TVPrograms.aspx) (Upon being asked about writing dissents, Justice Scalia says,

[D]issents are more fun to write. Ive got to say that, because when you have the dissent, its yours. You say what

you want, and if somebody doesnt want to join it, who cares? If you dont want to join my dissent, fine, its my

dissent.).


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A. 2007 Divided Cases

In 2007, the Court issued forty-nine divided opinions.45 Of these forty-nine divided

opinions, Roberts and Kennedy were in agreement thirty-six times, or seventy-three percent of

the time.46

Of these agreements, they were in the majority thirty-four times47

and dissented

together twice.48

They disagreed thirteen times:49

in five of these cases Roberts was in the

dissent,50

and eight of these cases Kennedy was in the dissent.51

The charts below depict the overall voting relationship of the two Justices in the 2007

Term as well as the amount that each individual Justice dissented. In this term, Kennedy

dissented more than Roberts, although these results are reversed in the 2008 Term, as will be

demonstrated by Figure 4.

45See infra notes 47, 48, 50, 51.46See infra notes 47, 48.47 Baze v. Rees, 553 U.S. 35 (2008); Begay v. United States, 553 U.S. 137 (2008); CBOCS West, Inc. v. Humphries,

128 S.Ct. 1951 (2008); Chamber of Commerce of U.S. v. Brown, 128 S.Ct. 2408 (2008); Crawford v. Marion

County Election Bd., 553 U.S. 181 (2008); Davis v. Fed. Election Commn, 128 S.Ct. 2759 (2008); District of

Columbia v. Heller, 128 S.Ct. 2783 (2008); Engquist v. Oregon Dept of Agric., 128 S.Ct. 2146 (2008); Exxon

Shipping Co. v. Baker, 128 S.Ct. 2605 (2008); Fed. Express Corp. v. Holowecki, 128 S.Ct. 1147 (2008); FloridaDept of Revenue v. Piccadilly Cafeterias, Inc., 128 S.Ct. 2326 (2008); Gonzalez v. United States, 553 U.S. 242

(2008); Greenlaw v. United States, 128 S.Ct. 2559 (2008); Indiana v. Edwards, 128 S.Ct. 2379 (2008); John R. Sand

& Gravel Co. v. United States, 552 U.S. 130 (2008); Meacham v. Knolls Atomic Power Lab., 128 S.Ct. 2395

(2008); Medellin v. Texas, 129 S.Ct. 360 (2008); Morgan Stanley Capital Group Inc. v. Public Utility Dist. No. 1,

128 S.Ct. 2733 (2008); New Jersey v. Delaware, 552 U.S. 597 (2008); Philippines v. Pimentel, 128 S.Ct. 2180

(2008); Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S.Ct. 2709 (2008); Preston v. Ferrer, 552

U.S. 346 (2008); Riegel v. Medtronic, 128 S.Ct. 999 (2008); Riley v. Kennedy, 128 S.Ct. 1970 (2008); Rothgery v.

Gillespie County, Tex., 128 S.Ct. 2578 (2008); Snyder v. Louisiana, 552 U.S. 472 (2008); Sprint Communications,

Co., L.P. v. APCC Servs., Inc., 128 S.Ct. 2531 (2008); Stoneridge Investment Partners, LLC v. Scientific-Atlanta,

552 U.S. 148 (2008); United States v. Rodriquez, 553 U.S. 377 (2008); United States v. Williams, 553 U.S. 285

(2008); United States v. Ressam, 553 U.S. 272 (2008); Allen v. Siebert, 552 U.S. 3 (2007); Gall v. United States,

128 S.Ct. 586 (2007); Kimbrough v. United States, 552 U.S. 85 (2007).48 Danforth v. Minnesota, 552 U.S. 264 (2008); United States v. Santos, 128 S.Ct. 2020 (2008).49See infra notes50, 51.50

Boumediene v. Bush, 128 S.Ct. 2229 (2008); Dada v. Mukasey, 128 S.Ct. 2307 (2008); Gomez-Perez v. Potter,

128 S.Ct. 1931 (2008); Kennedy v. Louisiana, 128 S.Ct. 2641 (2008); Sprint Communications, Co., L.P. v. APCC

Servs., Inc., 128 S.Ct. 2531 (2008).51 Ali v. Fed. Bureau of Prisons, 552 U.S. 214 (2008); Dept of Revenue of Kentucky v. Davis, 553 U.S. 328 (2008);

Giles v. California, 128 S.Ct. 2678 (2008); Hall Street Assoc. v. Mattell, 552 U.S. 576 (2008); Irizarry v. United

States, 128 S.Ct. 2198 (2008); Kentucky Retirement Systems v. E.E.O.C., 128 S.Ct. 2361 (2008); Metropolitan Life

Ins. Co. v. Glenn, 128 S.Ct. 2343 (2008); Washington State Grange v. Washington State Republican Party, 128

S.Ct. 1184 (2008).


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Figure 1 Figure 2

B. 2008 Divided Cases

In 2008, the Court issued fifty-three divided opinions.52

Of these fifty-three divided

opinions, Roberts and Kennedy were in agreement forty-two times, or seventy-nine percent of

the time.53

Of the forty-two times they agreed, they were in the majority together thirty-seven

times54

and in the dissent together five times.55

They disagreed eleven times:56

ten of these times

Roberts was in the dissent,57 and only once was Kennedy in the dissent.58

52

See infra notes 54, 55, 57, 58.53

See infra notes 54, 55.54

14 Penn Plaza LLC v. Pyett, 129 S.Ct. 1456 (2009); Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009); AT&T Corp. v.

Hulteen, 129 S.Ct. 1962 (2009); Bartlett v. Strickland, 129 S.Ct. 1231 (2009); Boyle v. United States, 129 S.Ct.

2237 (2008); Burlington Northern & Santa Fe Ry. Co. v. United States, 129 S.Ct. 1870 (2009); Carcieri v. Salazar,

129 S.Ct. 1058 (2009); Couer Alaska, Inc. v. Southeast Alaska Conservation Counsel, 129 S.Ct. 2458 (2009); Cone

v. Bell, 129 S.Ct. 1769 (2009); CSX Transp., Inc. v. Hensley, 129 S.Ct. 2139 (2009); Dean v. United States, 129

S.Ct. 1849 (2009); District Attorneys Office for Third Judicial Dist. v. Osborne, 129 S.Ct. 2308 (2009); Entergy

Corp. v. Riverkeeper, Inc., 129 S.Ct. 1498 (2009); FCC v. Fox Television Stations, Inc., 129 S.Ct. 1800 (2009);

Forest Grove School Dist. v. T.A., 129 S.Ct. 2484 (2009); Gross v. FBL Financial Servs., 129 S.Ct. 2343 (2009);

Harbison v. Bell, 129 S.Ct. 1481 (2009); Herring v. United States, 129 S.Ct. 695 (2009); Horne v. Flores, 129 S.Ct.

2579 (2009); Kansas v. Ventris, 129 S.Ct. 1841 (2009); Montejo v. Louisiana, 129 S.Ct. 2079 (2009); Negusie v.

Holder, 129 S.Ct. 1159 (2009); Nken v. Holder, 129 S.Ct. 1749 (2009); Northwest Austin Mun. Util. Dist. No. 1 v.

Holder, 129 S.Ct. 2504 (2009); Polar Tankers, Inc. v. City of Valdez, Ala., 129 S.Ct. 2277 (2009); Puckett v. United

States, 129 S.Ct. 1423 (2009); Ricci v. DeStefano, 129 S.Ct. 2658 (2009); Safford Unified Sch. Dist. No. 1 v.

Redding, 129 S.Ct. 2633 (2009); Shinseki v. Sanders, 129 S.Ct. 1696 (2009); Summers v. Earth Island Inst. 129

S.Ct. 1142 (2009); Travelers Indem. Co. v. Bailey, 129 S.Ct. 2195 (2009); Vermont v. Brillon, 129 S.Ct. 1283

(2009); Waddington v. Sarausad, 129 S.Ct. 823 (2009); Yeager v. United States, 129 S.Ct. 2360 (2009); Ysursa v.

Pocatello Educ. Assn., 129 S.Ct. 1093 (2009); Hedgpeth v. Pulido, 129 S.Ct. 530 (2008); Winter v. Natural Res.

Defense Council, Inc., 129 S.Ct. 365 (2008).


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The charts below depict the overall voting relationship of the two Justices in the 2008

Term as well as the amount that each individual Justice dissented. While Kennedy dissented

more than Roberts in the 2007 Term, Roberts dissented more than twice as much as Kennedy in

2008.

Figure 3 Figure 4

C. Dissents

1. Generally

Over the course of the 20072008 Terms, Roberts dissented a total of twenty-two times.59

Of these twenty-two cases, eighteen60

of the majority opinions were liberal-leaning,61

two were

55

Arizona v. Gant, 129 S.Ct. 1710 (2009); Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009); Cuomo

v. Clearing House Assn, L.L.C., 129 S.Ct. 2710 (2009); Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009);

Spears v. United States 129 S.Ct. 840 (2009).56See infra notes 57, 58.57 Arthur Andersen LLP v. Carlisle, 129 S.Ct. 1896 (2009); Caperton v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252

(2009); Corley v. United States, 129 S.Ct. 1558 (2009); Haywood v. Drown, 129 S.Ct. 2108 (2009); Oregon v. Ice,

129 S.Ct. 711 (2009); United States v. Hayes, 129 S.Ct. 1079 (2009); United States v. Denedo, 129 S.Ct. 2213

(2009); Vaden v. Discover Bank, 129 S.Ct. 1262 (2009); Wyeth v. Levine, 129 S.Ct. 1187 (2009); Altria Group, Inc.

v. Good, 129 S.Ct. 538 (2008).58 Ministry of Defense & Support for the Islamic Republic v. Elahi, 129 S.Ct. 1732 (2009).59

See infra notes 60, 62, 63.60

Gant, 129 S.Ct. 1710;Atlantic Sounding Co., 129 S.Ct. 2561; Caperton, 129 S.Ct. 2252; Corley, 129 S.Ct. 1558;

Clearing House Assn., 129 S.Ct. 2710; Haywood, 129 S.Ct. 2108; Melendez-Diaz, 129 S.Ct. 2527; Spears, 129

S.Ct. 840; Denedo, 129 S.Ct. 2213; Wyeth, 129 S.Ct. 1187 ; AltriaGroup, 129 S.Ct. 538; Boumediene, 128 S.Ct.

2229; Dada, 128 S.Ct. 2307; Danforth, 552 U.S. 264; Gomez-Perez, 128 S.Ct. 1931; Kennedy, 128 S.Ct. 2641;

SprintCommunications, 128 S.Ct. 2531; Santos, 128 S.Ct. 2020.61 The opinions were characterized as liberal or conservative based on what the average voter would consider liberal

or conservative: i.e., in a criminal case a liberal opinion would side with the defense, in a discrimination case, a


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conservative,62

and two did not clearly fall into either of these categories.63

This will not likely

come as a surprise to most, as the Chief Justice is generally viewed as a conservative and a

minimalist.64

Over this period of time, Kennedy dissented a total of sixteen times.65

Of these sixteen

dissents, seven of the majority opinions were conservative-leaning,66

eight were liberal-leaning,67

and one was not clearly classifiable.68

This also likely does not come as a surprise because of the

reputation that Justice Kennedy has gained as the Courts centrist or swing vote.69

Ideological Leaning of Majority Opinion in Cases Where Justice Joined a Dissent

Figure 5

liberal opinion would find in favor of the litigant, etc. Note that this method of analysis is discretionary, and the

results may vary if the analysis were to be approached differently.62Ice, 129 S.Ct. 711;Hayes, 129 S.Ct. 1079.63ArthurAndersen, 129 S.Ct. 1896; Vaden, 129 S.Ct. 1262.64 See, e.g., Grove, supra note 6, at 1; Supreme Court Considers Juvenile Sentences, ST. LOUIS POST-DISPATCH,Nov. 10, 2009, at A6.65See infra notes 66, 67, 68.66Elahi, 129 S.Ct. 1732; Ali, 552 U.S. 214; DeptofRevenueofKentucky, 553 U.S. 328; Hall Street Assoc., 552

U.S. 576; Irizarry, 128 S.Ct. 2198; Kentucky Retirement Systems, 128 S.Ct. 2361; Metropolitan Life Ins. Co., 128

S.Ct. 2343.67

Gant, 129 S.Ct. 1710;Atlantic Sounding Co., 129 S.Ct. 2561; Clearing House Assn., 129 S.Ct. 2710; Melendez-

Diaz, 129 S.Ct. 2527; Spears, 129 S.Ct. 840;Danforth, 552 U.S. 264; Giles, 128 S.Ct. 2678; Santos, 128 S.Ct. 2020.68WashingtonStateGrange, 128 S.Ct. 1184.69

Albert W. Alschuler, Herring v. United States: A Minnow or a Shark?, 7 OHIO ST.J.CRIM.L.463,476(2009);

John W. Whitehead & John M. Beckett, A Dysfunctional Supreme Court: Remedies and a Comparative Analysis, 4

CHARLESTON L.REV.171,186(2009).


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In order to provide a better understanding of the cases involved in this study, the next

chart breaks down all of the dissents discussed by subject matter. Criminal cases involve all

issues pertaining to the rights of a criminal defendant, including such issues as the

reasonableness of searches and seizures and the admissibility of evidence. Litigation and

business cases encompass all cases involving business and workplace issues including

allegations of discrimination. The Bill of Rights and Fourteenth Amendment category excludes

those rights pertaining to the accused, but includes all other rights contained in the first ten

Amendments to the Constitution as well as those rights incorporated through the Fourteenth

Amendment. The remaining categories should be self-explanatory. These figures will be

discussed in greater detail in subsections three and four, detailing the cases where the Justices

agree and disagree, respectively.

Total Dissents: By Type

Figure 6


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2. Authorship

Of the cases where either Justice dissented, Kennedy authored six dissents70 and Roberts

authored nine dissents.71

As indicated in Figure 6, the Chief Justice dissented in ten criminal

cases over the past two terms;72

he has written nearly half of the dissents in those cases.73

Additionally noteworthy is that Justice Kennedy dissented in four litigation/business cases in the

past two terms,74

and authored the dissent in three of those cases.75

The cases spanned various

areas of litigation and business including discrimination,76

employee benefits,77

arbitration,78

and

the blocking of assets.79

The majority opinion in all of these cases was conservative-leaning.

Roberts was in the majority in all four of these cases, although he did not write for the majority

in any of them. Justice Breyer, however, wrote for the majority in all three of the

litigation/business cases where Kennedy wrote a dissent.80

70

Ali, 552 U.S. 214; Dept of Revenue of Kentucky, 553 U.S. 328; Kentucky Retirement Systems, 128 S.Ct. 2361;

Metropolitan Life Ins., 128 S.Ct. 2343; Melendez-Diaz, 129 S.Ct. 2527;Elahi, 129 S.Ct. 1732.71Boumediene, 128 S.Ct. 2229;Danforth, 552 U.S. 264; Gomez-Perez, 128 S.Ct. 1931; Sprint Communications, 128

S.Ct. 2531; Caperton, 129 S.Ct. 2252; Spears, 129 S.Ct. 840; Hayes, 129 S.Ct. 1079; Denedo, 129 S.Ct. 2213;

Vaden, 129 S.Ct. 1262.72Boumediene, 128 S.Ct. 2229; Danforth, 552 U.S. 264; Kennedy, 128 S.Ct. 2641; Santos, 128 S.Ct. 2020; Gant,129 S.Ct. 1710; Corley, 129 S.Ct. 1558; Melendez-Diaz, 129 S.Ct. 2527;Ice, 129 S.Ct. 711; Spears, 129 S.Ct. 840;

Hayes, 129 S.Ct. 1079.73Boumediene, 128 S.Ct. 2229;Danforth, 552 U.S. 264; Spears, 129 S.Ct. 840;Hayes, 129 S.Ct. 1079.74

Hall Street Assoc., 552 U.S. 576; Kentucky Retirement Systems, 128 S.Ct. 2361; Metropolitan Life Ins. Co., 128

S.Ct. 2343;Elahi, 129 S.Ct. 1732.75

Kentucky Retirement Systems, 128 S.Ct. 2361; Metropolitan Life Ins. Co., 128 S.Ct. 2343;Elahi, 129 S.Ct. 1732.76Kentucky Retirement Systems, 128 S.Ct. 2361.77Metropolitan Life Ins. Co., 128 S.Ct. 2343.78

Hall Street Assoc., 552 U.S. 576.79Elahi, 129 S.Ct. 1732.80See supra note 75.


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Dissent Authorship: By Type

Figure 73. Agreements

Justices Roberts and Kennedy were in the dissent together a total of seven times over the

course of the 20072008 terms.81

All of these cases had liberal majority opinions. Of the

criminal cases where they agreed (five in total), two of these cases dealt with the Confrontation

Clause.82 The other three criminal cases dealt with various issues and yielded no particular

patterns.

One particularly interesting case where the two dissented in agreement with each other

was Danforth v. Minnesota.83

Roberts and Kennedy were the lone dissenters, and Roberts wrote

the dissent, which Kennedy signed onto.84

The case involved the retroactivity of Crawford v.

Washington85

on collateral review.86

The issue was whether a State could retroactively apply

81

Danforth, 552 U.S. 264; Santos, 128 S.Ct. 2020; Gant, 129 S.Ct. 1710; Atlantic Sounding, 129 S.Ct. 2561;

Clearing House Assn., 129 S.Ct. 2710; Melendez-Diaz, 129 S.Ct. 2527; Spears, 129 S.Ct. 840.82Danforth, 552 U.S. 264; Melendez-Diaz, 129 S.Ct. 2527.83Danforth, 552 U.S. 264.84

Id.85 Crawford v. Washington, 541 U.S. 36 (2004).86Danforth, 552 U.S. 264.


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Crawford more broadly than precedent indicated.87

The majoritys argument, written by Justice

Stevens, distinguishedDanforth from Teague v. Lane,88 a prior retroactivity case with a plurality

opinion written by Justice OConnor that Justice Kennedy had signed onto.89

Roberts authored a very impassioned dissent mainly concerned with, what he believes is

the majoritys departure from precedent and the potential for inconsistent outcomes in cases

arising under similar circumstances.90

He also stressed the belief that the federal judiciary

should decide whether Crawford applies retroactively or not.91

Roberts says of the majoritys

conclusion, The end result is startling: Of two criminal defendants, each of whom committed

the same crime, at the same time, whose convictions became final on the same day, and each of

whom raised an identical claim at the same time under the Federal Constitution, one may be

executed while the other is set freethe first despite being correct on his claim, and the second

because of it.92

It appears consistent with Justice Roberts judicial temperament that his

concern in this case was the uneven application of a federal precedent. Justice Kennedys voting

here may be due in part to his initial understanding of the Teagueprecedent, but may also be due

to similar fairness concerns as Justice Roberts.

87

Id.88 Teague v. Lane, 489 U.S. 288 (1989).89Danforth, 552 U.S. 264.90

Id.91Id.92Id. at 1047.


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Together in Dissent: By Type

Figure 8

4. Disagreements

Over the span of the two terms, Kennedy and Roberts disagreed a total of twenty-four

times.93

Of these twenty-four cases, seven cases were criminal.94

Roberts was in the dissent in

five of these cases,95

and Kennedy was in the dissent twice.96

Another notable disagreement

occurred in cases related to immigration or those involving a foreign litigant: in these cases,

Roberts dissented twice, whereas Kennedy did not dissent at all.97

Three of the times that the two Justices disagreed, they found themselves in direct

opposition to each other with one Justice writing for the majority, and the other writing a

dissenting opinion.98

In all three of these cases, Justice Kennedy wrote the majority opinion and

Justice Roberts wrote the dissent.99

Additionally, all of these cases had liberal majority

93See supra notes 50, 51, 57, 58.

94See infra notes 95, 96.

95Corley, 129 S.Ct. 1558; Ice, 129 S.Ct. 711; Hayes, 129 S.Ct. 1079; Boumediene, 128 S.Ct. 2229; Kennedy, 128

S.Ct. 2641.96Giles, 128 S.Ct. 2678;Irizarry, 128 S.Ct. 2198.97

Denedo, 129 S.Ct. 2213;Dada, 128 S.Ct. 2307.98Boumediene, 128 S.Ct. 2229; Caperton, 129 S.Ct. 2252;Denedo, 129 S.Ct. 2213.99Boumediene, 128 S.Ct. 2229; Caperton, 129 S.Ct. 2252;Denedo, 129 S.Ct. 2213.


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opinions.100

The vote in these cases was five to four, with the majority comprised of the

traditionally liberal justices and Kennedy.101

The chart below further breaks down each of the disagreements by type. The chart

indicates the Justice who was in the dissent in each of these types of cases.

Disagreements by Type (Chart Indicates the Justice who was in the Minority)

Figure 9

Over the two-term span, Roberts dissents in disagreement with Kennedy a total of fifteen

times.102

Eleven of these fifteen cases were 5 to 4 decisions,103

and nine104

of the five to four

decisions had a majority which consisted of the Courts liberal justices plus Kennedy.105

100Boumediene, 128 S.Ct. 2229; Caperton, 129 S.Ct. 2252;Denedo, 129 S.Ct. 2213.101Boumediene, 128 S.Ct. 2229; Caperton, 129 S.Ct. 2252;Denedo, 129 S.Ct. 2213.102Arthur Andersen, 129 S.Ct. 1896; Caperton, 129 S.Ct. 2252; Corley, 129 S.Ct. 1558;Haywood, 129 S.Ct. 2108;

Ice, 129 S.Ct. 711;Denedo, 129 S.Ct. 2213; Wyeth, 129 S.Ct. 1187; Vaden, 129 S.Ct. 1262;Altria Group, 129 S.Ct.

538; Boumediene, 128 S.Ct. 2229; Dada, 128 S.Ct. 2307; Gomez-Perez, 128 S.Ct. 1931; Hayes, 129 S.Ct. 1079;

Kennedy, 128 S.Ct. 2641; Sprint Communications, 128 S.Ct. 2531.103

Caperton, 129 S.Ct. 2252; Corley, 129 S.Ct. 1558; Haywood, 129 S.Ct. 2108; Ice, 129 S.Ct. 711; Denedo, 129

S.Ct. 2213; Vaden, 129 S.Ct. 1262; Altria Group, 129 S.Ct. 538; Boumediene, 128 S.Ct. 2229; Dada, 128 S.Ct.

2307;Kennedy, 128 S.Ct. 2641; SprintCommunications, 128 S.Ct. 2531.104Caperton, 129 S.Ct. 2252; Corley, 129 S.Ct. 1558; Haywood, 129 S.Ct. 2108; Denedo, 129 S.Ct. 2213; Altria

Group, 129 S.Ct. 538; Boumediene, 128 S.Ct. 2229; Dada, 128 S.Ct. 2307; Kennedy, 128 S.Ct. 2641; Sprint

Communications, 128 S.Ct. 2531.105 These Justices are Ruth Bader Ginsburg, John Paul Stevens, David Souter, and Stephen Breyer. They are

referred to as the Courts liberal Justices because they tend to vote as a politically liberal individual would.


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E. 5 to 4 Decisions

Over the 2007 and 2008 Terms, the Court issued thirty-four opinions where the vote was

five Justices to four.106

Eleven of these cases occurred in the 2007 Term107

and twenty-three of

these cases occurred in the 2008 Term.108

1. 2007 Term: 5 to 4 Decisions

In 2007, Kennedy was in the majority in seven of the eleven five to four decisions.109

In

three of the cases where Kennedy was in the majority, he voted with the conservatives on the

Court,110

and in the other four cases,111

he voted with the liberals on the Court. Consequently, in

each of these seven cases, Kennedy essentially cast the deciding vote. Roberts was in the

majority six times112

and in the dissent five times.113

Of the six times that Roberts was in the

majority, five cases involved a majority that was comprised of the conservative Justices plus

another Justice,114

and once he voted with a majority that was not ideologically split.115

106

See infra notes 107, 108.107Ali, 552 U.S. 214; AltriaGroup, 129 S.Ct. 538; Boumediene, 128 S.Ct. 2229; Dada, 128 S.Ct. 2307;Davis, 128

S.Ct. 2759; Heller, 128 S.Ct. 2783; Irizarry, 128 S.Ct. 2198; Kennedy, 128 S.Ct. 2641; KentuckyRetirement

Systems, 128 S.Ct. 2361;Plains Commerce Bank, 128 S.Ct. 2709; Sprint Communications, 128 S.Ct. 2531; Santos,128 S.Ct. 2020.108

Penn Plaza, 129 S.Ct. 1456; Gant, 129 S.Ct. 1710; Iqbal, 129 S.Ct. 1937; AtlanticSounding, 129 S.Ct. 2561;

Bartlett, 129 S.Ct. 1231; Caperton, 129 S.Ct. 2252; Corley, 129 S.Ct. 1558; Clearing House Assn., 129 S.Ct. 2710;

Osborne, 129 S.Ct. 2308; FCC, 129 S.Ct. 1800; Gross, 129 S.Ct. 2343; Haywood, 129 S.Ct. 2108; Herring, 129

S.Ct. 695; Horne, 129 S.Ct. 2579; Melendez-Diaz, 129 S.Ct. 2527; Montejo, 129 S.Ct. 2079; Ice, 129 S.Ct. 711;

Ricci, 129 S.Ct. 2658; Spears, 129 S.Ct. 840; Summers, 129 S.Ct. 1142;Denedo, 129 S.Ct. 2213; Vaden, 129 S.Ct.

1262;AltriaGroup, 129 S.Ct. 538.109See infra notes 110, 111.110Davis, 128 S.Ct. 2759;Heller, 128 S.Ct. 2783;Plains Commerce Bank, 128 S.Ct. 2709.111Boumediene, 128 S.Ct. 2229;Dada, 128 S.Ct. 2307;Kennedy, 128 S.Ct. 2641; Sprint Communications, 128 S.Ct.

2531.112

Ali, 552 U.S. 214;Davis, 128 S.Ct. 2759;Heller, 128 S.Ct. 2783;Irizarry, 128 S.Ct. 2198;Kentucky Retirement

Systems, 128 S.Ct. 2361;Plains Commerce Bank, 128 S.Ct. 2709.113

Boumediene, 128 S.Ct. 2229;Dada, 128 S.Ct. 2307;Kennedy, 128 S.Ct. 2641; Sprint Communications, 128 S.Ct.

2531; Santos, 128 S.Ct. 2020.114Ali, 552 U.S. 214; Davis, 128 S.Ct. 2759; Heller, 128 S.Ct. 2783; Irizarry, 128 S.Ct. 2198; Plains CommerceBank, 128 S.Ct. 2709. The Court's conservative Justices are Antonin Scalia, Clarence Thomas, Samuel Alito, and

John Roberts.115Kentucky Retirement Systems, 128 S.Ct. 2361.


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Figure 10 Figure 11

2. 2008 Term: 5 to 4 Decisions

Of the twenty-three five to four opinions issued in 2008,116 Kennedy was in the majority

in sixteen cases.117

Of these sixteen cases, Kennedy voted with the conservative justices twelve

times118

and with the liberal justices four times.119

Similar to the 2007 Term, Kennedy arguably

cast the deciding vote in all sixteen of these cases. In the remaining seven cases, Kennedy was in

the dissent120 five times and voted as part of a non-ideologically split Court twice.121 Roberts was

in the majority twelve times122

and in the dissent eleven times.123

In the 2008 Term, if the

majority opinion in a five to four decision did not consist of the conservative Justices plus

another Justice, Roberts was in the dissent.

116See supra note 108.117See infra notes 118, 119.118 Penn Plaza, 129 S.Ct. 1456; Iqbal, 129 S.Ct. 1937; Bartlett, 129 S.Ct. 1231; Osborne, 129 S.Ct. 2308; Fox

Television, 129 S.Ct. 1800; Gross, 129 S.Ct. 2343; Herring, 129 S.Ct. 695; Horne, 129 S.Ct. 2579; Montejo, 129S.Ct. 2079;Ricci, 129 S.Ct. 2658; Summers, 129 S.Ct. 1142;Denedo, 129 S.Ct. 2213.119Caperton, 129 S.Ct. 2252; Corley, 129 S.Ct. 1558;Haywood, 129 S.Ct. 2108;AltriaGroup, 129 S.Ct. 538.120 Gant, 129 S.Ct. 1710; Atlantic Sounding, 129 S.Ct. 2561; Clearing House Assn., 129 S.Ct. 2710; Melendez-

Diaz, 129 S.Ct. 2527; Spears, 129 S.Ct. 840.121

Ice, 129 S.Ct. 711; Vaden, 129 S.Ct. 1262.122

Penn Plaza, 129 S.Ct. 1456;Iqbal, 129 S.Ct. 1937;Bartlett, 129 S.Ct. 1231; Osborne, 129 S.Ct. 2308;FCC, 129

S.Ct. 1800; Gross, 129 S.Ct. 2343;Herring, 129 S.Ct. 695;Horne, 129 S.Ct. 2579; Montejo, 129 S.Ct. 2079;Ricci,

129 S.Ct. 2658; Summers, 129 S.Ct. 1142;Denedo, 129 S.Ct. 2213.123

Atlantic Sounding, 129 S.Ct. 2561; Caperton, 129 S.Ct. 2252; Clearing House Assn., 129 S.Ct. 2710; Corley,

129 S.Ct. 1558; Gant, 129 S.Ct. 1710; Haywood, 129 S.Ct. 2108; Ice, 129 S.Ct. 711; Melendez-Diaz, 129 S.Ct.

2527; Spears, 129 S.Ct. 840; Vaden, 129 S.Ct. 1262;Altria Group, 129 S.Ct. 538.


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Figure 12 Figure 13

3. 5 to 4 Decisions: Observations

While Roberts was in the majority in slightly over fifty percent of the five to four

decisions issued over the past two years, it is clear that Kennedys vote on the Court plays a

significant role. In closely divided cases, not only does Justice Kennedys vote often decide

which way the majority will go, but Kennedy was also in the majority in almost seventy-five

percent of the Courts five to four decisions over the past two years.

The fact that Kennedy still dissents a significant amount, as evidenced in Figures 2 and 4

does not necessarily diminish the influence that he has in cases where the Court is closely

ideologically divided. What the charts do not illustrate is that Kennedy often casts the deciding

vote in cases that could be considered high profile or that generally draw public interest. For

example, inDistrict of Columbia v. Heller, the Court found a Washington, D.C. handgun law in

violation of the Second Amendment, an outcome that a political conservative would find

favorable, and which spurred much controversy and caused many to question the future of the

Courts Second Amendment jurisprudence.124

Conversely, inKennedy v. Louisiana, which dealt

with the capitalization of child rape, the Court sided with the criminal, finding that imposing the

124 District of Columbia v. Heller, 128 S.Ct. 2783 (2008).


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death penalty on child rapists constituted cruel and unusual punishment; a decision which

frustrated many conservatives.125 It is Kennedys record here that likely spurs the belief that

Kennedy is the Courts swing vote. As long as his voting record continues along the trend that

seems to have developed over the last two terms, this moniker appears to be fitting.

IV. Conclusions

The preceding analysis revealed several patterns in the voting of both Chief Justice John

Roberts and Associate Justice Anthony Kennedy. First of all, the Chief Justice is voting largely

like a political conservative. This does not mean that he reaches what may be understood to be a

conservative result in every case, however, in the vast majority of cases in which he dissents, he

is dissenting from a liberal majority opinion. This is at least an indication that, in the sampling

of cases analyzed, the Chief Justice felt that it was necessary to express his disagreement with a

liberal result. Secondly, Justice Kennedys vote remains valuable in ideologically divided five to

four decisions. Largely, Justice Kennedy is the deciding vote in such cases. Kennedys

reputation as the swing or deciding vote may be more appropriate than his reputation as a

centrist, as evidenced by the wide variety of cases where he has cast the deciding vote. Despite

Justice Kennedys voting in five to four decisions, the two Justices remain in agreement the

majority of the time and both dissent with relatively similar frequency.

Analyzing the voting records of judges does not necessarily provide conclusive results,

but is at least a step in understanding and appreciating what drives judges to reach their

decisions. Even the most rudimentary understanding of what aids judges in decision-making

allows advocates and analysts an insight into the workings of any court. While it is certainly not

possible to predict with certainty the way that judges will vote in any particular case, identifying

125 Kennedy v. Louisiana, 128 S.Ct. 2641 (2008).


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patterns or tendencies allows one to begin to understand this complex judicial process. Justice

Cardozo again says it best when he writes, [w]e may try to see things as objectively as we

please. None the less, we can never see them with any eyes except our own.126

126 CARDOZO,supra note 3, at 13.

Amanda Sherman - Chief Justice & the Swing Vote

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