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Bench Memos

NRO’s home for judicial news and analysis.

Kagan on “Swing Vote” and “Least Predictable” Anthony Kennedy



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Just last week, Justice Anthony Kennedy publicly objected to being characterized as the “swing vote” on the Court:

“The word swing vote is to me somewhat of an abhorrence,” he said. “I don’t swing around; the cases, they swing around me.”

Relatedly, Kennedy doesn’t like his positions to be portrayed as inconsistent or unstable. As Jan Crawford has written:

Kennedy is not O’Connor. Kennedy doesn’t instinctively seek the middle or try to provide balance.… He wants to be consistent. And when he decides on his position, he’s pretty comfortable there.

It’s safe to guess, then, that Kennedy didn’t much care for it when Elena Kagan said this about him as she introduced him at a Harvard law school alumni lunch in 2006:

Justice Kennedy now occupies the position of the swing vote on the court.  He is the person on the current court whose votes on cases are least predictable, least easy to place in one bloc or the other.

(In her most recent introduction of Kennedy just last month, Kagan’s notes indicate that she expressly rejected the “swing vote” characterization.)



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