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How to solve Justice Kennedy issue hogging problem.
nedosionist
Whose Scotus is it, anyway? While John Roberts may be the Chief Justice, Anthony Kennedy is well-positioned at the center of the court’s ideological spectrum, and this centrist role as a swing vote gives him a tremendous influence balancing the split court in 5:4 decisions.

The “problem” that needs fixing is a situation when a single Justice “owns” an area of the evolving law, writing a series of key decisions in a row; this can be called “justice specialization”, or “judicial hogging” or “issue hogging”. This is an egotistical abuse of stare decisis, as such justices maneuver to bind future courts and society at large, while following their own footsteps. It is regretful, although unavoidable all too frequently, when the Court supplants the judgment of Congress or of the people with its own. It is simply wrong when such overriding judgment is of a single justice persona. Kennedy, of course, is not the only hogger justice; however his aforementioned centrist influence gives him a flexibility to do so, and greatly aggravates this problem of such single-person quest; his preferences in such issue-area are dictatorial. Such decisions lack requisite democratic legitimacy and are damaging both for the Court as an institution, and for the national consensus as a whole, aggravating political polarization.

As a prime exhibit consider the chain of progressively radical “gay rights” decisions: Romer (1996), Lawrence (2003), Windsor (2013), Obergefell (2015), which were all written by Justice Anthony Kennedy. His pet project over the 20 years amounts to an attempted redefinition of the institution of marriage being imposed on an American people. In that - reflecting his preference alone. Obergefell is especially appalling and notable with regards to issue hogging.

Why couldn’t a liberal justice have written that opinion? In modern American jurisprudence, anti-discrimination claims are normally done by establishment of a protected class. Liberal members of the Court were likely inclined to establish such class; however that’s tricky insofar as “gay” or “LGBTQ” are fairly artificial social constructs with fuzzy boundaries and even more shaky foundation. This kind of non-discrimination can variously be claimed on basis on “sex”, or “gender identity”, or “sexual orientation”, or sexual disability etc. These grounds are practically reinforcing but conceptually and legally exclusive of each other. So the liberal majority apparently couldn’t agree on a specific class construction (or more likely, couldn’t sell one to Kennedy), and so Kennedy dispensed with class definition and modern substantive due process jurisprudence altogether, reverting to the interwar approach (see Roberts’ dissent tracing it to Lochner), exposing in the process the plaintiffs claim to nondiscrimination as groundless. In other words, he wrote it to his own vision, and the liberals joined him out of political expediency. (My concern here is not the gay issue per se, but the decision-making process, institutional legitimacy, and checks and balances.)

Issue hogging permits for a simple fix: such justice specialization should be disallowed. This can be accomplished by changing the Court rules so that a justice who wrote a previous relevant key decision(s) simply cannot be assigned the next one in this area of law. That would cause a case to be assigned to another justice; liberal or conservative, whoever can build a new majority. Thus this area of law would conform not to a single justice’ taste, but be more broadly based and firmer supported, fostering consensus-building, and therefore more legitimate. (It is hard to tell how Obergefell alternative would have looked like: maybe liberals would prevail with adopting a protected class, maybe vain search for such class would result in reversal; but it would surely look different, and be more legitimate.) If it is unclear which prior decisions constitute such precedent, this can be specified in the legal briefs, and a short hearing on this aspect may be held.

Such change is of course a prerogative of the Scotus itself, but they are unlikely at present to address it. So the Congress can nudge it, by passing a law requiring or even a resolution requesting that the Court does so. It might be better to do it in a form of law, despite it being a plain violation of separation of powers, just to communicate to the Court the urgency before they strike it down. (Headline: “Senate to Scotus: Go fix yourself.”). If the Court declines a polite invitation and refuses to institute such a rule, the Senate should refrain from appointing an odd justice, leaving the Court with an even number, and thus acting as a check on Court’s uncontrolled power. Last post-Scalia year demonstrated that Scotus can adapt to working in such mode, sans polarizing sweeping 5:4 opinions; the Roberts Court adapted to a likelihood of deadlock by trying to avoid it, searching for narrower grounds for a decision, or avoiding hard cases altogether. Perhaps in the time of sharpened political polarization in Congress and society, the nation would be better off with the Court running in this newfound moderated mode for a while. And our problem of hogger justices is a lot less acute with 5:3 decisions.

So if the Court declines to moderate itself, the Senate can help. With a likely delay in confirmation of Gorsuch anyway due to Democratic opposition, now is a good time to do so: Senate can make lemonade (pressure on the Court to moderate) out of lemon (Democratic filibustering of the nominee). In this sense speedy confirmation of Judge Gorsuch may be advantageous for the conservative cause short-term, but a properly managed delay may benefit the Congress as an institution, and to rebalance the separation of powers.