A Few Fractious Furlongs to Go

As May began, the Supreme Court had decided only 36 of the 88 cases it has heard since its term began last October. In terms of the Kentucky Derby, the court has almost five full furlongs still to go. A few observations:

Justice Anthony Kennedy is solidifying his position as the court’s swing man. So far he has been on the losing side only twice. On Jan. 22 he refused to join the majority in an opinion dealing with criminal sentences in California. On April 30, he joined dissenting Justices John Paul Stevens and Samuel Alito in a case involving the disposal of solid waste in New York.

Otherwise Kennedy has shifted with the prevailing winds. On the court’s first Opinion Day in November, he spoke for the court’s four conservatives in a death sentence case from California. On April 18 he spoke again for the conservatives in the great abortion cases from California and Nebraska. On April 25 the wind shifted: This time he spoke for the court’s four liberals in a death sentence case from Texas. A week ago he spoke for everybody in a case involving charges of patent infringement. At this Round Table he is Sir Tony the Agreeable.

A second tentative conclusion: If conservatives had expected Justice Alito to be a 100 percent, red-blooded, dyed-in-the-wool, rock-solid right-winger, they may have some surprises coming. Alito has written four opinions thus far, three of them for a unanimous court. In the fourth he wound up speaking not only for the chief justice but also –gasp! — for Justices Stevens, Kennedy and Breyer in construing Florida’s law on attempted burglary.

Whether it is the influence of the new chief justice — or his lack of influence — we are seeing an unusual number of unexpected combinations. For example, in vacating the humongous judgment of an Oregon court in the Philip Morris case, the Supremes didn’t split — they splintered. We found Breyer, Kennedy, Alito, Souter and the chief justice on the prevailing side. On the other side were some unexpected bedfellows: Scalia, Stevens, Ginsburg and Thomas. The same lineup took the field last month in the case of Alphonso James, in which the court upheld a mandatory sentence imposed upon a three-time loser in Florida.

More than 50 argued cases remain to be decided before the court, exhausted by nine months of hard labor, takes its summer recess. Nothing spectacular is in prospect. While we wait, let me call up the court’s overlooked opinion of April 17 in a case involving federal aid to schools in New Mexico. It was a dull case. It drew a dull 5-4 opinion from Justice Breyer, but it triggered a rousing dissent from Justice Scalia and a vigorous riposte from Justice Stevens.

Scalia began with a concession to civility: The majority at least thought its opinion was permissible. "It most assuredly is not," said Scalia. On the contrary, "at first blush, second blush or twenty-second blush," Breyer’s erroneous reasoning should have been abundantly clear. The majority’s made-for-litigation theory bore almost no relationship to the involved regulations at stake. Breyer’s exegesis of the word "per" was utterly irrelevant. His colleague had delivered a complete non sequitur. Scalia wondered how New Mexico could explain its position with a straight face. "The sheer applesauce of its statutory interpretation should be obvious."

Scalia then settled down to a serious exchange with Stevens on the role of appellate judges in construing an ambivalent statute, in this case, the law governing "Impact Aid" to localities overwhelmed by a huge federal presence. Stevens had filed a concurring opinion in which he defended the court’s power "to override a strict interpretation of the text" in order to give effect to the perceived "will" of the legislature, i.e., the most probable "intent" of the lawmakers.

Not so, argued Scalia. "That what judges believe Congress ‘meant’ (apart from the text) has a disturbing but entirely unsurprising tendency to be whatever judges think Congress must have meant, i.e., should have meant. … Contrary to the court and Justice Stevens, I do not believe that what we are sure the Legislature meant to say can trump what it did say. Citizens arrange their affairs, not on the basis of their legislators’ unexpressed intent, but on the basis of the law as it is written and promulgated."

Scalia and Stevens are the two best writers on the court. This time, in the name of strict construction and judicial modesty, Scalia clearly won.