Whose Court Is It?

Doug Kmiec makes a good case that Chief Justice Roberts' consensus-building abilities overwhelms Anthony Kennedy's power in deploying what's effectively become the "swing vote" on the Supreme Court. (He also insightfully notes that, in contrast to Justice O'Connor, it's almost impossible to deduce exactly what factors, facts or assurances Justice Kennedy looks for in resolving a case, which curbs Kennedy's influence insofar as it limits the ability of litigants to make ideological/legal bids for his favor).

Professor Kmiec's assessment differs radically from that of The New York Times, which has has been sending Justice Kennedy journalistic valentines (here and, more egregiously, here ["there is something refreshing about a justice who genuinely seems to have an open mind"]).

And by doing so, the Times is once again playing politics. Court observers have long known that Justice Kennedy is painfully susceptible to the "Greenhouse effect" -- and the Times is obviously hoping that a hearty ego-stroking will keep the Justice on the "right" (rather, the left) side of important cases.