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Saturday, July 1, 2006

"So much for unanimity at the Supreme Court."

Tony Mauro zeroes in on what I think is the issue for summations of the Court's just-ended term:
A term that began with hope and at least limited evidence that a new era of consensus had begun dissolved in its final weeks into a blizzard of quarrelsome writing that clarified little and robbed some decisions of their precedential force. In some of the Court's most important rulings, justices tossed consensus aside and penned lengthy opinions, partial concurrences, and dissents that left readers crying "Uncle" or pleading, "Can't they all get along?"...

[N]o one seems to fault Roberts for failing to achieve that goal....

But the biggest factor in the demise of definitive decision-making in June may be Kennedy's central importance in the wake of O'Connor's departure....

"It's Justice Kennedy's world, and you just live in it," says Thomas Goldstein of Akin Gump Strauss Hauer & Feld. He adds that unlike O'Connor, when Kennedy casts a crucial vote, he tends to write -- either the main opinion or a separate concurrence....

Whereas O'Connor sought to "hammer out differences," says Cambridge University professor David Garrow, "Kennedy is more attracted to the sound of his own voice."
And what an exasperating voice it can be. It wouldn't be so bad having a centrist judge casting the deciding vote and articulating the moderate position that bridges the Court's two sides. The problem is that the statement of the position is so fuzzy and prolix.

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