Holding Court

04.11.15 10:45 AM ET

The Supreme Rivalry That Runs America

The power struggle between Chief Justice John Roberts and Justice Anthony Kennedy might have more say in this summer’s same-sex marriage vote than you think.

Supreme Court Justices are supposed to decide cases under the “law” and they rarely discuss their personal relationships with each other publicly other than to suggest that they all get along famously. There’s little public attention paid to how the Justices react to one another—and that makes it extremely difficult for Court watchers to report on what may be important personal dynamics between the Justices.

Nevertheless, throughout history, there are pairs of Justices whose relationships were important both to the functioning of the institution and to votes in individual cases. Justices William Brennan and Thurgood Marshall, for example, voted as a liberal pair in most important cases for many years. There’s even evidence that towards the end of Marshall’s career, he instructed his clerks to vote as Justice Brennan voted.

There’s every reason to think Brennan and Marshall had a strong personal bond. The same was not true for Felix Frankfurter and Hugo Black. Black was a Southerner and a member of the KKK before he ascended to the Court and Frankfurter, a Northeastern Jewish liberal, were antagonists throughout their careers and saw the Constitution very differently over a host of cases. Their strained personal relationship clearly affected their work and votes.

And now, there may be an historic personal dynamic occurring behind the curtains of our highest Court today that influences how the Court resolves important and news worthy cases. There is every reason to think Chief Justices Roberts and Justice Anthony Kennedy are battling for control of the Court. This dynamic may partially explain Chief Justice Roberts’ puzzling vote in the first ObamaCare decision (NFIB V. Sebelius) and may also affect his upcoming votes in this term’s blockbuster Obama Care and same-sex marriage cases. Of course, I can offer no direct proof of this, but only interesting, relevant, and maybe even persuasive, circumstantial evidence.

Before we get started, note that I’m not suggesting there is any personal animosity between these two men but rather a contest for power, position, and influence.

The story begins after the 2004-05 Supreme Court term when Chief Justice William Rehnquist and Justice Sandra Day O’Connor were replaced by John Roberts and Samuel Alito. Court commentators expected Roberts to vote substantially like the conservative Rehnquist and also predicted that Alito, also a George W. Bush appointee, would vote more conservatively than Justice O’Connor. Prior to the personnel shifts, Justices O’Connor and Kennedy were the swing votes with one or the other almost always dictating the results in 5-4 decisions. Starting in 2005, however, one of those swing votes was gone.

In the first term of the new “Roberts” Court, Justice Anthony Kennedy agreed with the results in the Court’s cases more than any other Justice (94.1 percent of the time), and was in the majority of 5-4 cases more than any other Justice. He also wrote the majority opinion in the most newsworthy case of that term—the one holding that Guantanamo Bay prisoners have habeas corpus rights. (Chief Justice Roberts wrote a strong dissent to that.).

When the first term of the Roberts Court ended, there was universal consensus that Justice Kennedy, in the wake of Justice O’Connor’s retirement, was now the key vote on the Court. The Nation Magazine’s summary of the term was titled: “The Kennedy Court.” CBS news reported that “the real power on this Court belongs to Justice Kennedy.”

The next year made it clear beyond any doubt that Justice Kennedy was by far the most important Justice. In a term that included blockbuster cases on abortion, affirmative action, and freedom of speech and religion, there were 24 decisions with a 5-4 vote—with Justice Kennedy in the majority of every one.

After that momentous term, there was no debate who was first among equals on the Supreme Court. In virtually every contested area of law, the Court decided cases as Justice Kennedy preferred.

Although Roberts was (and is) the Chief Justice, the only real power the Chief exerts is the authority to assign the writing of opinions if—and only if—he is in the majority. To exercise that power, however, in a case where Justice Kennedy joins the liberals, Justice Roberts must also vote for that side. Prior to the ruling in NFIB v. Sebelius in 2012, however, Chief Justice Roberts had sided with the Court’s four liberals in a 5-4 decision exactly one time in his career (a less than earth-shattering tax/due process case).

The overwhelming speculation before NFIB was handed down? It was that Justice Kennedy, leader of the Kennedy Court, would play the pivotal role. The National Review wrote that “when the Supreme Court inevitably hears a challenge to Obamacare’s constitutionality … the most important question is what Anthony Kennedy thinks.” CNN’s coverage began with a huge headline saying “Kennedy Swing Vote on Health Care?”

We now know that Chief Justice Roberts, who according to some changed his mind at the last minute, decided to vote with the four liberals and save the Affordable Care Act (the four other conservatives voted to strike down the entire law on the grounds that the individual mandate was unconstitutional). Maybe even more surprisingly, Justice Roberts wrote a legal opinion to save the law that pleased virtually no one on either the left or the right. Liberal commentators thought his commerce clause analysis was woefully inconsistent with prior doctrine while conservatives were disappointed that he allowed that the individual “mandate” functioned as a tax in order to save the law.

One thing virtually everyone agreed on, however: that the NFIB decision in the last week of June, 2012 dramatically changed the “Kennedy Court” narrative. Justice Roberts was no longer the putative Chief.

Dean Erwin Chemerinsky wrote an article titled: “It’s now the John Roberts Court.” Observing that Roberts also voted with the liberals in two cases other than NFIB that week, Chemerinsky concluded: “For seven years, in virtually every ideologically divided case, it was Justice Kennedy who played the role as swing justice. Now Roberts has played that role and in the most important and dramatic of circumstances.”

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Did Chief Justice Roberts vote the way he did in that pivotal Obamacare case—and two other cases that in that last week of June in 2012—to wrest power (or at least publicity) away from Justice Kennedy? Was he bothered that, prior to the moment NFIB was decided, he was the Chief Justice of the “Kennedy Court?” And do these questions even matter?

The answer to the last question is yes. Which justice’s vote matters the most is important to lawyers who plan litigation strategy. When I was a young lawyer at the Department of Justice and I was assigned an important church/state case, I was instructed by senior lawyers to build my evidentiary record in the trial court with an eye towards Justice O’Connor, who at the time was the swing vote in most religion cases. Prior to NFIB, in most close cases likely headed to the Supreme Court, lawyers developed facts and arguments to convince Justice Kennedy. Now, they have to take into account Chief Justice Roberts as well.

The battle for control of the Court also matters to historians and Court followers who want to try and put in context Chief Justice Roberts’s performance in NFIB. The conventional wisdom is that he voted to uphold the law to preserve the legacy of the institution, not wanting the Court to strike down the President’s signature law by a 5-4 partisan vote just a few months before the election. Maybe, but it is also possible his personal legacy and future control of the Court was just as much on his mind.

It also matters because the battle for control of this Court between Roberts and Kennedy makes it extremely unlikely the Chief will allow Justice Kennedy to write both the same-sex marriage and Affordable Care Act decisions the Court will hand down in June of this year.

If Justice Kennedy were to write both opinions—especially if both are 5-4 decisions decided along partisan lines, with the exception of Kennedy—it might once again be the “Kennedy Court.” That will almost certainly not happen, however, as Adam Liptak pointed out in the New York Times a few weeks ago. He suggested “the term could end with two liberal decisions assigned and perhaps written by Justice Kennedy, leaving the leader and namesake of the Roberts court on the sidelines. That cannot be an appealing prospect, and it could prompt the chief justice to look for a narrow, provisional ground to” vote for the government in this year’s Obamacare case.

If Liptak is right that Roberts’ votes in important cases might be affected by his relationship with Justice Kennedy, that dynamic is surely worthy of further study by both those who litigate in front of the Justices and those whose job it is to write about our country’s highest Court.

As Professor Bernard Schwartz once said about a book detailing the relationship between Justices Frankfurter and Black, “The Supreme Court does not work in the …purely logical way many people think it does, but .. through the personal as well as the legal give-and-take between the Justices …

“Surely,” he wrote, “it is better for Court and country that this be made known [rather] than kept concealed behind the red velour curtain.”