Paul H. Edelman and Jim Chen (Vanderbilt University School of Law and University of Louisville - Louis D. Brandeis School of Law) have posted The Most Dangerous Justice Rides into the Sunset (Constitutional Commentary, Vol. 24, p. 299, 2007) on SSRN. Here is the abstract:
In this essay, our third and last in a series, we employ our previously developed techniques to measure the power of the Justices in the Rehnquist Court over its full 11 year run. Once again, Justice Kennedy rises to the top of our rankings, as he had done earlier. Our methods identify Justices Souter, Breyer and Ginsburg as being notable either for their influence or lack thereof. In addition, we rejoin the debate on the connection between being the median justice and being the most powerful one. We question whether even the most sophisticated methods of finding the median justice are adequate to the task of assessing power on the Court.
And some more from the conclusion:
The results presented here challenge the conventional wis-dom in several respects. First, although Sandra Day O’Connor was lauded as the critical swing Justice in the Rehnquist Court, by our measures she was not as powerful as some have argued. That is not to say that her retirement from the Court will not make a profound difference in particular cases. We have already seen such an impact in the recent abortion decision, Gonzales v. Carhart (2007),46 in which the Court upheld the federal Partial Birth Abortion Ban Act of 2003. Other cases will also result in shifts in doctrine due to Justice O’Connor’s replacement by Jus-tice Alito. But the measures we present here reflect not only the importance of the swing vote (particularly the Modified Median measure), but also the ability of individual Justices to muster a majority coalition that unifies behind a doctrinal standard or ap-proach as expressed in a single opinion. Because of its implications for the rule of law, this standard is meaningful for reasons that extend beyond the simple analysis of the Justices’ votes to affirm or reverse. Fragmented coalitions have the potential to undermine the clarity of legal standards as expressed in Supreme Court precedent. The most powerful Justices—particularly as measured by our Sophisticated Index—are those who can form coalitions that speak with a unified voice. Perhaps this standard for judicial power therefore measures the attribute that should concern us most.
Second, according to our measures, Justices Kennedy and Souter stand out most prominently. Justice Kennedy is now commonly assumed to occupy the power center on the Court, but it appears that he did so during the Rehnquist Court as well. Souter, on the other hand, exercised power in a more subtle fashion than Kennedy, given his flexibility with various coali-tions on the Court. While Kennedy’s star may continue to rise with the addition of Chief Justice Roberts and Justice Alito, the future is less certain for Souter, who may have more difficulty forming coalitions with these new conservative members. After several terms of the Roberts Court, we look forward to recom-puting our figures to assess who, in fact, will have emerged as the contemporary Court’s most dangerous Justice.
If you are interested in the current Supreme Court, you must read this important paper. Highly recommended. Download it whilte its hot!
