WASHINGTON — Justice Anthony Kennedy, who already decides whether liberals or conservatives win the Supreme Court’s most closely contested cases, is about to take on an even more influential behind-the-scenes role with the retirement of Justice John Paul Stevens.
By virtue of seniority, Ken nedy will inherit Stevens’ power to choose the author of some court opinions, an authority that has historically been used — including in as big a case as the landmark Roe-vs.-Wade abortion decision — to subtly shape a ruling or preserve a tenuous majority.
This change might keep the court’s most liberal justices from writing some of its biggest decisions.
An unwritten high-court rule gives the senior justice in the majority the power to assign opinions.
When the liberals win an ideologically driven case by a 5-4 vote, the court’s two senior justices — Chief Justice John Roberts and Justice Antonin Scalia, both conservatives — are sure to be on the losing side. With Stevens gone, the 74-year-old Kennedy now makes the pick.
A former Bush administration solicitor general, Paul Clem ent, said putting the power to assign opinions in Ken nedy’s hands is the “single most important dynamic change” brought on by Stevens’ departure.
Handing an opinion to the least-committed member of a narrow majority is the most obvious and important use of the assigning power, several former high-court law clerks said.
“You figure that justice will feel compelled to stay on board,” said Michael Dorf, a former law clerk to Kennedy who teaches law at Cornell University.
It’s difficult to assess the effect of Kennedy’s new power.
His pivotal role until now — somewhere between the more conservative and the more liberal justices — has allowed him to dictate how far the court could go in many areas.
David Garrow, a Cambridge University historian who has written about the court, said Kennedy might move away from the conservatives in close cases, knowing that disagreeing with them “would put him in the decision-maker’s seat.”
Or, he said, Roberts might come to the realization that “he needs to work all the more to keep Kennedy inside the conservative tent.”
Another possibility is that Kennedy might keep an opinion for himself that Stevens would have handed off to another liberal justice.
