Whither the Kennedy Court?

Wasn't Justice Anthony Kennedy supposed to be the backbone of numerous 5-4 Supreme Court decisions. Not lately, according to the New York Times.

Justice Kennedy’s dominance last term was so complete that, of 68 decisions, he cast only two dissenting votes. He has already dissented five times this term. So have Justices Samuel A. Alito Jr., Stephen G. Breyer and John Paul Stevens. In other words, no longer the essential justice, Anthony Kennedy now looks like just one of the pack.

Something is happening, clearly. The question is what. The caveats against drawing any hard conclusions at this stage are obvious. For one thing, the term is functionally only half over, with 35 cases down and 32 to come. And it is common for the hardest-fought decisions to come at the very end. The District of Columbia gun control case, the latest case on the rights of the Guantánamo detainees and a case on whether the death penalty is a constitutional punishment for raping a child are yet to be decided.

Still, there is a clear pattern in the cases the court has already decided this term. The court upheld Kentucky’s method of execution by lethal injection by a vote of 7 to 2. It upheld Indiana’s law requiring photo identification at the polls by a vote of 6 to 3. The justices voted 7 to 2 on Monday to uphold the latest federal effort to curb trade in child pornography.

[snip]

It would be too simplistic an explanation to say that the liberal justices, at least some of them, have simply given up. Something deeper seems to be at work. Each of those three cases might have received a harder-edged, more conclusively conservative treatment at the hands of the same five-member majority that controlled the last term.

Instead, the lethal injection and voter ID decisions hewed closely to the facts of each case. Kentucky’s lethal injection protocol passed muster, but the court left open the possibility that another state’s practice might not. The voter ID challenge reached the court on a nonexistent record, so perhaps a stronger case could be made at a later time. Justice Antonin Scalia’s majority opinion in the child pornography case construed the statute so narrowly as to allay the

First Amendment concerns of Justices Stevens and Breyer and win their full concurrence. So perhaps there was a bit of movement on both sides — not simple liberal capitulation, but liberals using their limited leverage to exact some modest concessions as the price of helping the conservatives avoid another parade of 5-to-4 decisions.

With the conservative bloc so clearly in control, what leverage could the liberals possibly have? Recall the pledge that Chief Justice John G. Roberts Jr. made, both in his 2005 confirmation hearing and in the early months of his tenure, to seek consensus and to lead the court in speaking in a modest judicial voice. That was not how the last term looked, as the majority took aim at precedents and appeared to have in mind an agenda much more ambitious than simply calling balls and strikes.

I'm not too sure how having decisions be 7-2 instead of 5-4 helps the liberal Justices, unless the "concessions" were along the lines of, "Give us these other things, and we won't overturn Roe v Wade."