Justice Kennedy still the potential tie-breaker
Legal analysts say the new lineup of justices will maintain the 4 to 4 liberal-conservative balance of power that has existed for years, with Justice Anthony Kennedy providing the potential tie-breaking swing vote.
But there are also more subtle influences in play. Chief Justice John Roberts appears to be making an effort to unify the court when possible, somewhat undercutting Kennedy’s power as the swing justice.
At the same time, the retirement of Stevens this year elevates Kennedy to the third most senior justice – behind Chief Justice Roberts and Justice Antonin Scalia, both conservatives. Kennedy’s new seniority potentially makes him the most senior justice in cases where he swings to the liberal side.
Under court tradition, the most senior justice on the majority side of a case has the authority to assign who writes the opinion. Legal analysts will be watching to see if this becomes a factor in how often Kennedy casts a swing vote and delivers a liberal victory.
Another potential development to watch, analysts say, will be who fills Stevens’ role as the long-time leader of the court’s liberal wing. Stevens’ experience and gentle, respectful manner helped maintain an important behind-the-scenes dynamic at the court.