June 29, 2009
Kennedy remained the "swing" vote in the 2008-2009 Term
Kennedy's reputation as the "swing vote" on the United States Supreme Court is substantiated by his performance during the Term that concluded today. According to the wonderfully informative "Super Stat Pack" by ScotusBlog, available here, Kennedy was in the majority 92.4% of the time in 79 opinions, and perhaps more importantly, 88.7% of the time in the 53 opinions in divided cases in which there was at least one dissenting vote. According to ScotusBlog this is an even higher number than Kennedy's "stats" from last Term - 85.5% and 79.2% respectively.
(Just for fun, consider jotting down your own ranking of the Justices before you look at the Scotusblog stats for "frequency in the majority: Second after Kennedy? Last at 47.2%?).
This doesn't mean that Kennedy authored the most opinions. Indeed, according to the ScotusBlog "Final Stats," Kennedy ranks last in "Opinion Authorship" at 14 Opinions.
Given these statistics, it might be a good time to turn to a new book, The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty, by Helen J. Knowles.
An informative review of the book is available in Law & Politics Book Review here. The reviewer, Tobias Gibson, writes:
Knowles uses the Introduction of the book to suggest that Kennedy’s reputation of writing opinions which are “doctrinally weak” does not do justice to the Justice. Instead, the purpose of this book is “to try to identify some of the most prominent and important philosophical and legal threads that are woven into the cloth from which Justice Kennedy’s jurisprudence is cut.” Knowles starts from the assertion that Kennedy is a “moderate libertarian.” This assertion stems from Kennedy’s avoidance of radical legal positions, coupled with his belief in diverse views and protection of human dignity.
Gibson and Knowles are both political scientists and Gibson recommends the book highly. However, Gibson provides a good outline of the chapters (as is typical in a short review) so that readers who are law professors have information to decide whether or not the book would add to their own insights.
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