Winning and Losing in the Supreme Court: How the Recently-Concluded Supreme Court Term Bolstered Justice Kennedy's Power, But Undermined John McCain's Constitutional Credibility

By VIKRAM DAVID AMAR


Tuesday, Jul. 8, 2008

Supreme Court Terms, like the cases that comprise them, have winners and losers. Some are obvious, others less so. In this column, I provide one brief scorecard of the 2007-2008 Term that just wrapped up.

An Obvious Winner: Justice Anthony Kennedy

Among the obvious winners was Justice Anthony Kennedy. Although he now serves on what history will record as the “Roberts Court” (for Courts are typically named after the Chief Justices who preside over them), Justice Kennedy owns the current Court. He was in the majority of every major 5-4 ruling the high tribunal handed this year. When he voted with the more conservative Justices (Chief Justice Roberts and Justices Scalia, Thomas, and Alito), as he did in the Second Amendment gun possession case, they won. And when he joined the more moderate/liberal wing of the Court (Justices Stevens, Souter, Ginsburg, and Breyer), as he did in the Guantanamo detainee case and the Louisiana case in which the Court held that capital punishment may not be imposed for crimes that do not involve murder, it prevailed.

Justice Kennedy did dissent in 2007-2008 more often than he did the year before. In 2006-2007, he was on the losing end of only 3 out of 72 cases, and was in the majority in each and every 5-4 ruling handed down. By contrast, in 2007-2008, Justice Kennedy dissented in at least 10 out of 70 cases, and was in the minority in a few (less important) 5-4 rulings. In fact, overall Chief Justice Roberts dissented less often than Justice Kennedy this past year.

But in the cases that mattered most – the close cases that grab the headlines and that have the largest doctrinal, financial, and symbolic importance – Justice Kennedy was in charge this year, just as he was last.

And the divergence between Justice Kennedy and Chief Justice Roberts in the Guantanamo case and the Louisiana capital punishment case highlights the importance of the fall Presidential election for the Court. If, as seems plausible, the elderly Justice Stevens were to leave the Court in the next four (or eight) years, replacing him with someone as or more liberal than Justice Kennedy – the way a President Obama would likely try to do -- would preserve Justice Kennedy as the Court’s fulcrum. But replacing a Justice Stevens with someone in the mold of Chief Justice Roberts or Justice Alito – as a President McCain would likely attempt -- would shift the Court’s center to Chief Justice Roberts, and create a relatively young group of five solidly and consistently conservative Justices who could then be predicted to keep the Court on a decidedly conservative course for a decade or more.

A Non-obvious Loser: John McCain

A less-obvious loser this year was John McCain. Two of the biggest half dozen 5-4 rulings this year forcefully rejected his work as a Senator and, more importantly, his understanding of constitutional basics.

First , there is the Guantanamo detainee case – in which the Court held that detainees have access to habeas corpus relief in federal court and are not limited to the rights they are given under the military tribunal structure. That holding directly repudiated the constitutional vision advanced by Senator McCain and other key backers and architects of the Congressional Military Commissions Act that the Court struck down.

Seeming to appreciate this point, Senator McCain quickly labeled the ruling “one of the worst decisions in the history of this country.” But this claim is outlandish: Even if Justice Scalia’s dissent were correct, does Senator McCain’s understanding of the Constitution really lead him to equate a decision that guarantees persons including noncitizens access to procedural safeguards and federal courts with infamous rulings such as Dred Scott and Plessy v. Ferguson that deprived African- Americans of any of the incidents of equal citizenship?

The other blockbuster case from this last term in which the Court majority (this time, with Kennedy siding with the conservatives, not the liberals) slapped Senator McCain in the face was Davis v. Federal Election Commission. There, the Court struck down yet another piece of the well-known McCain-Feingold campaign finance law, a part known as the “Millionaire’s Amendment.” These provisions gave special advantages to a candidate who is running against a self-funded candidate who spends a large amount of his own money. The Court ruled, plausibly enough, that such a provision effectively punishes the self-funded candidate for exercising his constitutionally-protected right (recognized in the famous Buckley v. Valeo ruling from 1976) to spend one’s own money to pursue political office.

The Davis ruling last month, taken together with 2007’s Federal Election Commission v. Wisconsin Right to Life, Inc. decision, rejects on constitutional grounds much, if not most, of Senator McCain’s signature piece of work as a legislator.

Of course, some might argue (as Justice Stevens, dissenting in Davis, did) that Buckley was wrong, and that adopting rules so that poorer candidates can compete against richer ones isn’t all bad. But the Millionaire’s Amendment was not designed simply to help less well-heeled candidates against gazillionaires in the abstract. Rather, and much more ominously, its legislative history shows it was added to the statute in part at least to protect incumbents against wealthy newcomers.

Challengers, after all, need to spend more money than incumbents because incumbents already have name recognition and other benefits of incumbency. And, as Richard Pildes of NYU law school has pointed out, John McCain himself in the Senate used this pro-incumbency dimension of the statute to sell it to his colleagues, not realizing that this entrenching aspect of the law is completely antithetical to the goals of the First Amendment. As legal giant John Hart Ely observed, “clearing the channels of political change” is largely what the First Amendment is about.

In these complicated times, after enduring eight years of a President whose constitutional instincts and knowledge are subprime, so to speak, the county might benefit from having someone in the Oval Office who “gets” the Constitution a bit more. This Term of the Supreme Court raises some questions about John McCain in this regard. Of course, having a President who is constitutionally sophisticated is never a guarantee of smooth sailing, as Bill Clinton demonstrated. But constitutional savvy, or at least good constitutional instincts, is still a desirable quality for our Chief Executive to possess.


Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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