Friday, January 14, 2011

The Chief Justice & the Swing Vote

Viewing the Voting Relationship Between John Roberts and Anthony Kennedy Through the Lens of a Legal Realist
By Amanda Celeste Sherman 
In this paper, Amanda Celeste Sherman, a 2010 honors graduate of Albany Law School and Graduate Editor of the Center, explores the voting alignment of Supreme Court Chief Justice John Roberts and Justice Anthony Kennedy in divided decisions over a recent two year period.
In his poem Ulysses, Alfred Lord Tennyson writes, “I am a part of all that I have met.”[1]  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.[2]  “[A]ny first year law student knows that judges make law constantly.  The first year student’s common law subjects are almost entirely judge-made law.”[3]  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 and direction to thought and action.  Judges cannot escape that current any more than other mortals.”[4]

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 Court’s 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 Court’s swing vote.[5]  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.[6]

[1] Alfred Lord Tennyson, Ulysses, in Alfred Lord Tennyson, Idylls of the King and a Selection of Poems 323 (2003).
[2] See generally Benjamin N. Cardozo, The Nature of the Judicial Process (1921) (providing realistic insight into the judicial process).
[3] Erwin Chemerinsky, Seeing the Emperor’s Clothes: Recognizing the Reality of Constitutional Decision Making, 86 B.U. L. Rev. 1069 (2006).
[4] Cardozo, supra note 2, at 12.
[5] See, 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.
[6] Cardozo, supra note 2, at 12.

Read the entire paper here.