As many commentators have already pointed out, the replacement of David Souter is unlikely to alter the nature of future Supreme Court decisions. The Supreme Court, as opposed to the United States Senate, operates strictly by majority rule, which means the jurist who occupies the median vote on the nine-member bench exercises an inordinate amount of power, particularly on divisive cases.

Justice Kennedy, the current king of the median vote (previously occupied by Justice O’Connor) can swing almost any controversial decision by making sure he sits in the middle of a decision. He can do that because Supreme Court decisions are a multi-stage process full of negotiations and compromises.

Under the court’s rules, the chief justice or the most senior member of the majority has the prerogative to assign the author the opinion of the court. Savvy judges have the power to either offer Justice Kennedy (or whomever the median voter is) the option of writing the majority decision, or writing a decision that appeals directly to his sensibilities.

Lawyers are well-aware of this and present arguments in front of the court that appeal directly to one jurist. I heard a lawyer who argued Grutter v. Bollinger (the Michigan University affirmative action case) describe it as a clear-out play in basketball where you isolate one ball-handler against one defender. Rob Armstrong and Bob Woodward’s excellent book The Brethren (1979) gives a rare glimpse of just how much bargaining goes on inside the court (it also includes some hilarious stories of the justices having to watch adult films to decide whether they were sufficiently pornographic).

Consider the current court make-up on an ideological spectrum:


In order to make a dramatic change on the court’s direction, President Obama would have to replace Justice Kennedy, or a judge to his right on the ideological spectrum, with a more liberal judge. This, of course, is a simplification; different aspects of law can produce different coalitions and ideological alignments, like Justice Scalia’s vote to strike down a flag-burning law.

We tend to think that the court is divided by a liberal and a conservative bloc and that decisions depend on whichever bloc has a majority of members, but it’s much more accurate to describe the current as being driven by the jurist that sits fifth along a nine-member spectrum.

It’s true that the current court has liberal and conservative blocs, but that thinking is an outgrowth of how a median voter operates. To move the court substantively to one ideological side or the other requires changing the median vote, and President Obama, presumably, has no interest in appointing someone more conservative than Justice Kennedy.

The views expressed in this blog do not represent the views or opinions of Generations United.