The Chief Justice and the Swing Vote:

Viewing the Voting Relationship Between John Roberts and Anthony Kennedy
Through the Lens of a Legal Realist

Amanda Celeste Sherman

“[L]ong ago, the legal realists exposed the myth of formalism by demonstrating the inevitability
of judicial discretion. Especially in constitutional law, formalism is inadequate. Balancing
competing interests is a persistent feature of constitutional decision making.”1

I. Introduction and Framework

In his poem Ulysses, Alfred Lord Tennyson writes, “I am a part of all that I have met.”2

These words resound with those who read them because of the general understanding that human

beings are a compilation of lessons learned experientially. Past happenings shape both present

and future decisions: this is the human experience. While there is perhaps a comfort in saying

that the role of a judge is to apply the facts to the law and consequently reach the “correct” result,

this formula is complicated when reasonable people can differ about what law governs and what

facts are relevant.3 “[A]ny first year law student knows that judges make law constantly. The

first year student’s common law subjects are almost entirely judge-made law.”4 Justice

Benjamin Cardozo aptly described judicial decision-making when he said, “There is in each of

us a stream of tendency, whether [we] choose to call it philosophy or not, which gives coherence


























































1
Erwin Chemerinsky, Seeing the Emperor’s Clothes: Recognizing the Reality of Constitutional Decision Making, 86
B.U. L. REV. 1069, 1071 (2006).
2
Alfred Lord Tennyson, Ulysses, in ALFRED LORD TENNYSON, IDYLLS OF THE KING AND A SELECTION OF POEMS
323 (2003).
3
See generally BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921) (providing realistic insight
into the judicial process).
4
Chemerinsky, supra note 1, at 1069.

1
and direction to thought and action. Judges cannot escape that current any more than other

mortals.”5

It is with this foundation that this paper examines the voting relationship between Chief

Justice John G. Roberts and Associate Justice Anthony Kennedy in the Supreme Court’s 2007

and 2008 terms. The purpose of this paper is not to question the integrity of these Judges, but

rather quite the opposite. This paper aims to provide a better understanding of the U.S. Supreme

Court by examining a small sampling of the voting record of the Chief Justice and an Associate

Justice who, whether justifiably or not, has become known as the Court’s swing vote.6 The

resulting information will be analyzed with the understanding that judges do not and cannot

robotically apply law to facts, and therefore, are likely guided by something akin to the streams

of tendency of which Justice Cardozo speaks.7

II. Judge’s Background

Before examining the recent voting records of Chief Justice Roberts and Justice

Kennedy, it is necessary to understand their background. The following section offers a brief

summary of their lives and careers before they took their respective positions on the Court.

A. Chief Justice John G. Roberts

John Glover Roberts was born in 1955 in Buffalo, New York.8 He is married to Jane

Sullivan Roberts, who is also an attorney in the Washington, D.C. area, and the two now have

two children.9 His father worked as an executive for a steel company and his mother was a


























































5
CARDOZO, supra note 3, at 12.
6
See, e.g., Tara Leigh Grove, The Structural Case for Vertical Maximalism, 95 CORNELL L. REV. 1, 1 (2009); Ted
Gest, Outlook; The Court, U.S. NEWS & WORLD REP., July 15, 1996, at 12; Supreme Court Considers Juvenile
Sentences, ST. LOUIS POST-DISPATCH, Nov. 10, 2009, at A6.
7
CARDOZO, supra note 3, at 12.
8
LISA TUCKER MCELROY, JOHN G. ROBERTS, JR.: CHIEF JUSTICE 8 (2007).
9
Jennifer L. Jack, 10 Things You Didn’t Know About John Roberts, U.S. NEWS & WORLD REP., Oct. 1, 2007; see
Hanna Rosin, Nominee’s Wife is a Feminist After Her Own Heart, WASH. POST, July 22, 2005, at C01.

2
homemaker.10 At the age of eight, his family moved to Long Beach, Indiana, where he spent the

remainder of his formative years.11 He was raised in the Roman Catholic faith, attending an all-

male Catholic high school.12 In 1976 Roberts earned his B.A. from Harvard College, graduating

summa cum laude.13 He earned his J.D. from Harvard Law School in 1979, where he served as

managing editor to the Harvard Law Review and graduated magna cum laude.14

Upon graduation, Roberts took a clerkship position with Judge Henry Friendly of the

U.S. Court of Appeals for the Second Circuit.15 The following year, Roberts participated in

another clerkship with Associate Justice William Rhenquist at the United States Supreme

Court.16 After the completion of that clerkship, Roberts served as special assistant to the U.S.

Attorney General and later as Associate Counsel to the President during the Reagan

administration.17

Roberts then began working as an associate in the Washington, D.C. firm of Hogan &

Hartson where he remained for a year before being elected a general partner.18 He then left the

firm to serve in the role of Deputy Solicitor General for several years before returning to private

practice in 1992.19 Over the course of his career, Roberts argued before the Supreme Court

thirty-nine times.20 Roberts was “highly regarded as one of the best advocates in the history of


























































10
Id.
11
Id. at 8.
12
See Jack, supra note 9.
13
Id.; U.S. SUPREME COURT, THE JUSTICES OF THE SUPREME COURT,
www.supremecourtus.gov/about/biographiescurrent.pdf [hereinafter JUSTICES].
14
JUSTICES, supra note 13; The Oyez Project, John G. Roberts, Jr., http://www.oyez.org/justices/john_g_roberts_jr
(last visited Nov. 3, 2010) [hereinafter John G.].
15
John G., supra note 14.
16
Id.
17
Id.
18
Id.; U.S. SENATE COMM. ON THE JUDICIARY, JOHN G. ROBERTS, JR. ANSWER TO SENATE JUDICIARY COMMITTEE
QUESTIONNAIRE, PART 1 [hereinafter QUESTIONNAIRE 1].
19
John G., supra note 14.
20
Press Release, The White House, President Announces Judge John Roberts as Supreme Court Nominee (July 19,
2005), available at http://georgewbush-whitehouse.archives.gov/news/releases/2005/07/20050719-7.html.

3
the court” and, through his multiple appearances at oral arguments, likely gained a rare insight

into the workings of the Court and the thought processes of the individual Justices that sat on the

bench.21 He wrote an article in 1997 discussing strategies for effective oral argument, where he

said, “Be particularly skeptical of advice on how to argue an appeal from appellate judges . . .

most judges give good advice on how to win a winning case . . . . Judges have no interest in the

court reaching a ‘wrong’ result, but fifty percent of clients do.”22

In 2003, President George W. Bush nominated John Roberts to serve on the U.S. Court of

Appeals for the District of Colombia Circuit.23 Roberts remained in this position until July of

200524 when President Bush nominated him to fill Justice Sandra Day O’Connor’s soon to be

vacant seat on the Supreme Court.25 This changed, however, when Chief Justice Rhenquist

passed away in early September: President Bush then changed Roberts’ nomination to that of

Chief Justice.26

The confirmation hearings began right away, as President Bush announced his desire to

start the October Term with a new Chief.27 Roberts was eventually confirmed by a vote of

seventy-eight to twenty-two.28 Roberts took his seat on September 29, 2005, making him the

seventeenth Chief Justice of the Supreme Court and the youngest to fill the position since John

Marshall.29


























































21
See John G. Roberts, Thoughts on Presenting an Effective Oral Argument, SCH. L. IN REV. 7-1, 7-1 (1997); Sandra
Day O’Connor, John Roberts, TIME, April 30, 2006, available at
http://www.time.com/time/magazine/article/0,9171,1187207,00.html.
22
Roberts, supra note 21.
23
JUSTICES, supra note 13.
24
Id.
25
Peter Baker, Bush Nominates Roberts as Chief Justice; President Seeks Quick Approval with Another Seat Left to
Fill, WASH. POST, Sept. 6, 2005, at A01.
26
Baker, supra note 25.
27
Id.
28
Charles Babington & Peter Baker, Roberts Confirmed as 17th Chief Justice: Senate Republicans are Unanimous,
Democrats Evenly Split, WASH. POST, Sept. 30, 2005, at A01.
29
JUSTICES, supra note 13; Baker supra note 25.

4
 B. Associate Justice Anthony M. Kennedy

Anthony McLeod Kennedy was born in Sacramento, California in 1936.30 His father was

a lawyer and his mother was a teacher and active in civic activities in the community.31 In 1958

he earned a B.A. from Stanford University and the London School of Economics.32 Kennedy

then went on to attend Stanford University where he graduated cum laude.33 Upon graduating

from law school, Kennedy worked as an associate for a San Francisco firm, but after his father’s

death in 1963, he returned to Sacramento to continue his father’s practice.34

Around this time, Kennedy married Mary Davis and the two eventually had three

children.35 Kennedy also began teaching Constitutional Law at McGeorge University, where he

remained for over twenty years.36 Kennedy was an active member of the Republican Party

through which he met and befriended Edwin Meese, who would eventually play a role in

Kennedy’s nomination to the Court.37 Kennedy participated in politics in various roles,

including lobbying and helping President Reagan (who was the Governor of California at the

time) draft a plan to cut taxes and spending.38 Kennedy remained politically active until 1975

when President Gerald Ford appointed him to serve on the United States Court of Appeals for the


























































30
JUSTICES, supra note 13.
31
Danielle Burton, 10 Things You Didn’t Know About Anthony Kennedy, U.S. NEWS & WORLD REP., Oct. 1, 2007;
The Oyez Project, Anthony M. Kennedy, http://www.oyez.org/justices/anthony_kennedy (last visited Nov. 3, 2010)
[hereinafter Anthony M.].
32
JUSTICES, supra note 13; Anthony M., supra note 31.
33
Anthony M., supra note 31.
34
Burton, supra note 31.
35
Id.
36
JUSTICES, supra note 13.
37
Anthony M., supra note 31.
38
Id.

5
Ninth Circuit.39 Facing a court comprised of many liberal judges, Kennedy took on the role as a

leader of the conservative minority.40

In late 1987, President Reagan nominated Kennedy to the position of Associate Justice of

the Supreme Court, to fill the seat left vacant by Justice Powell.41 Kennedy was the third of the

President’s nominees to fill the seat as Reagan’s first two nominees were unsuccessful: Robert

Bork was not confirmed by the Senate after heated confirmation hearings and Douglas Ginsburg

withdrew his name from consideration after allegations of prior marijuana use surfaced.42

Kennedy was unanimously confirmed by the Senate, however, and took his seat on February 18,

1988.43

III. Voting Analysis

This study focuses on the divided opinions of the Supreme Court in the 2007 and 2008

Terms. Divided cases were analyzed to examine the patterns that emerge, if any. The

methodology for doing so is explained in the proceeding text and footnotes. A focus is placed on

close cases or cases where either Chief Justice John Roberts or Associate Justice Anthony

Kennedy wrote a dissent. This focus is taken with the hope that these cases more accurately

depict areas where the Justices have particularly strong feelings,44 rather than cases where a large

majority of the Court was in agreement.


























































39
Id.
40
Maureen Hoch, Profile: Justice Anthony Kennedy,
http://www.pbs.org/newshour/indepth_coverage/law/supreme_court/justices/kennedy.html (last visited Nov. 3,
2010).
41
Linda Greenhouse, Reagan Nominates Anthony Kennedy to Supreme Court, N.Y. TIMES, Nov. 12, 1987, at A1.
42
Anthony M., supra note 31.
43
JUSTICES, supra note 13; Hoch, supra note 40.
44
See C-SPAN: Justice Scalia Interview (C-SPAN television broadcast Oct. 9, 2009) (transcript available at
http://supremecourt.c-span.org/TVPrograms.aspx) (Upon being asked about writing dissents, Justice Scalia says,
“[D]issents are more fun to write. I’ve got to say that, because when you have the dissent, it’s yours. You say what
you want, and if somebody doesn’t want to join it, who cares? If you don’t want to join my dissent, fine, it’s my
dissent.”).

6
 A. 2007 Divided Cases

In 2007, the Court issued forty-nine divided opinions.45 Of these forty-nine divided

opinions, Roberts and Kennedy were in agreement thirty-six times, or seventy-three percent of

the time.46 Of these agreements, they were in the majority thirty-four times47 and dissented

together twice.48 They disagreed thirteen times:49 in five of these cases Roberts was in the

dissent,50 and eight of these cases Kennedy was in the dissent.51

The charts below depict the overall voting relationship of the two Justices in the 2007

Term as well as the amount that each individual Justice dissented. In this term, Kennedy

dissented more than Roberts, although these results are reversed in the 2008 Term, as will be

demonstrated by Figure 4.


























































45
See infra notes 47, 48, 50, 51.
46
See infra notes 47, 48.
47
Baze v. Rees, 553 U.S. 35 (2008); Begay v. United States, 553 U.S. 137 (2008); CBOCS West, Inc. v. Humphries,
128 S.Ct. 1951 (2008); Chamber of Commerce of U.S. v. Brown, 128 S.Ct. 2408 (2008); Crawford v. Marion
County Election Bd., 553 U.S. 181 (2008); Davis v. Fed. Election Comm’n, 128 S.Ct. 2759 (2008); District of
Columbia v. Heller, 128 S.Ct. 2783 (2008); Engquist v. Oregon Dep’t of Agric., 128 S.Ct. 2146 (2008); Exxon
Shipping Co. v. Baker, 128 S.Ct. 2605 (2008); Fed. Express Corp. v. Holowecki, 128 S.Ct. 1147 (2008); Florida
Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 128 S.Ct. 2326 (2008); Gonzalez v. United States, 553 U.S. 242
(2008); Greenlaw v. United States, 128 S.Ct. 2559 (2008); Indiana v. Edwards, 128 S.Ct. 2379 (2008); John R. Sand
& Gravel Co. v. United States, 552 U.S. 130 (2008); Meacham v. Knolls Atomic Power Lab., 128 S.Ct. 2395
(2008); Medellin v. Texas, 129 S.Ct. 360 (2008); Morgan Stanley Capital Group Inc. v. Public Utility Dist. No. 1,
128 S.Ct. 2733 (2008); New Jersey v. Delaware, 552 U.S. 597 (2008); Philippines v. Pimentel, 128 S.Ct. 2180
(2008); Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S.Ct. 2709 (2008); Preston v. Ferrer, 552
U.S. 346 (2008); Riegel v. Medtronic, 128 S.Ct. 999 (2008); Riley v. Kennedy, 128 S.Ct. 1970 (2008); Rothgery v.
Gillespie County, Tex., 128 S.Ct. 2578 (2008); Snyder v. Louisiana, 552 U.S. 472 (2008); Sprint Communications,
Co., L.P. v. APCC Servs., Inc., 128 S.Ct. 2531 (2008); Stoneridge Investment Partners, LLC v. Scientific-Atlanta,
552 U.S. 148 (2008); United States v. Rodriquez, 553 U.S. 377 (2008); United States v. Williams, 553 U.S. 285
(2008); United States v. Ressam, 553 U.S. 272 (2008); Allen v. Siebert, 552 U.S. 3 (2007); Gall v. United States,
128 S.Ct. 586 (2007); Kimbrough v. United States, 552 U.S. 85 (2007).
48
Danforth v. Minnesota, 552 U.S. 264 (2008); United States v. Santos, 128 S.Ct. 2020 (2008).
49
See infra notes 50, 51.
50
Boumediene v. Bush, 128 S.Ct. 2229 (2008); Dada v. Mukasey, 128 S.Ct. 2307 (2008); Gomez-Perez v. Potter,
128 S.Ct. 1931 (2008); Kennedy v. Louisiana, 128 S.Ct. 2641 (2008); Sprint Communications, Co., L.P. v. APCC
Servs., Inc., 128 S.Ct. 2531 (2008).
51
Ali v. Fed. Bureau of Prisons, 552 U.S. 214 (2008); Dep’t of Revenue of Kentucky v. Davis, 553 U.S. 328 (2008);
Giles v. California, 128 S.Ct. 2678 (2008); Hall Street Assoc. v. Mattell, 552 U.S. 576 (2008); Irizarry v. United
States, 128 S.Ct. 2198 (2008); Kentucky Retirement Systems v. E.E.O.C., 128 S.Ct. 2361 (2008); Metropolitan Life
Ins. Co. v. Glenn, 128 S.Ct. 2343 (2008); Washington State Grange v. Washington State Republican Party, 128
S.Ct. 1184 (2008).

7
 Figure 1 Figure 2

B. 2008 Divided Cases

In 2008, the Court issued fifty-three divided opinions.52 Of these fifty-three divided

opinions, Roberts and Kennedy were in agreement forty-two times, or seventy-nine percent of

the time.53 Of the forty-two times they agreed, they were in the majority together thirty-seven

times54 and in the dissent together five times.55 They disagreed eleven times:56 ten of these times

Roberts was in the dissent,57 and only once was Kennedy in the dissent.58


























































52
See infra notes 54, 55, 57, 58.
53
See infra notes 54, 55.
54
14 Penn Plaza LLC v. Pyett, 129 S.Ct. 1456 (2009); Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009); AT&T Corp. v.
Hulteen, 129 S.Ct. 1962 (2009); Bartlett v. Strickland, 129 S.Ct. 1231 (2009); Boyle v. United States, 129 S.Ct.
2237 (2008); Burlington Northern & Santa Fe Ry. Co. v. United States, 129 S.Ct. 1870 (2009); Carcieri v. Salazar,
129 S.Ct. 1058 (2009); Couer Alaska, Inc. v. Southeast Alaska Conservation Counsel, 129 S.Ct. 2458 (2009); Cone
v. Bell, 129 S.Ct. 1769 (2009); CSX Transp., Inc. v. Hensley, 129 S.Ct. 2139 (2009); Dean v. United States, 129
S.Ct. 1849 (2009); District Attorney’s Office for Third Judicial Dist. v. Osborne, 129 S.Ct. 2308 (2009); Entergy
Corp. v. Riverkeeper, Inc., 129 S.Ct. 1498 (2009); FCC v. Fox Television Stations, Inc., 129 S.Ct. 1800 (2009);
Forest Grove School Dist. v. T.A., 129 S.Ct. 2484 (2009); Gross v. FBL Financial Servs., 129 S.Ct. 2343 (2009);
Harbison v. Bell, 129 S.Ct. 1481 (2009); Herring v. United States, 129 S.Ct. 695 (2009); Horne v. Flores, 129 S.Ct.
2579 (2009); Kansas v. Ventris, 129 S.Ct. 1841 (2009); Montejo v. Louisiana, 129 S.Ct. 2079 (2009); Negusie v.
Holder, 129 S.Ct. 1159 (2009); Nken v. Holder, 129 S.Ct. 1749 (2009); Northwest Austin Mun. Util. Dist. No. 1 v.
Holder, 129 S.Ct. 2504 (2009); Polar Tankers, Inc. v. City of Valdez, Ala., 129 S.Ct. 2277 (2009); Puckett v. United
States, 129 S.Ct. 1423 (2009); Ricci v. DeStefano, 129 S.Ct. 2658 (2009); Safford Unified Sch. Dist. No. 1 v.
Redding, 129 S.Ct. 2633 (2009); Shinseki v. Sanders, 129 S.Ct. 1696 (2009); Summers v. Earth Island Inst. 129
S.Ct. 1142 (2009); Travelers Indem. Co. v. Bailey, 129 S.Ct. 2195 (2009); Vermont v. Brillon, 129 S.Ct. 1283
(2009); Waddington v. Sarausad, 129 S.Ct. 823 (2009); Yeager v. United States, 129 S.Ct. 2360 (2009); Ysursa v.
Pocatello Educ. Assn., 129 S.Ct. 1093 (2009); Hedgpeth v. Pulido, 129 S.Ct. 530 (2008); Winter v. Natural Res.
Defense Council, Inc., 129 S.Ct. 365 (2008).

8
 The charts below depict the overall voting relationship of the two Justices in the 2008

Term as well as the amount that each individual Justice dissented. While Kennedy dissented

more than Roberts in the 2007 Term, Roberts dissented more than twice as much as Kennedy in

2008.


 

Figure 3 Figure 4

C. Dissents

1. Generally

Over the course of the 2007–2008 Terms, Roberts dissented a total of twenty-two times.59

Of these twenty-two cases, eighteen60 of the majority opinions were liberal-leaning,61 two were





















































































































































































55
Arizona v. Gant, 129 S.Ct. 1710 (2009); Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009); Cuomo
v. Clearing House Ass’n, L.L.C., 129 S.Ct. 2710 (2009); Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009);
Spears v. United States 129 S.Ct. 840 (2009).
56
See infra notes 57, 58.
57
Arthur Andersen LLP v. Carlisle, 129 S.Ct. 1896 (2009); Caperton v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252
(2009); Corley v. United States, 129 S.Ct. 1558 (2009); Haywood v. Drown, 129 S.Ct. 2108 (2009); Oregon v. Ice,
129 S.Ct. 711 (2009); United States v. Hayes, 129 S.Ct. 1079 (2009); United States v. Denedo, 129 S.Ct. 2213
(2009); Vaden v. Discover Bank, 129 S.Ct. 1262 (2009); Wyeth v. Levine, 129 S.Ct. 1187 (2009); Altria Group, Inc.
v. Good, 129 S.Ct. 538 (2008).
58
Ministry of Defense & Support for the Islamic Republic v. Elahi, 129 S.Ct. 1732 (2009).
59
See infra notes 60, 62, 63.
60
Gant, 129 S.Ct. 1710; Atlantic Sounding Co., 129 S.Ct. 2561; Caperton, 129 S.Ct. 2252; Corley, 129 S.Ct. 1558;
Clearing House Ass’n., 129 S.Ct. 2710; Haywood, 129 S.Ct. 2108; Melendez-Diaz, 129 S.Ct. 2527; Spears, 129
S.Ct. 840; Denedo, 129 S.Ct. 2213; Wyeth, 129 S.Ct. 1187 ; Altria Group, 129 S.Ct. 538; Boumediene, 128 S.Ct.
2229; Dada, 128 S.Ct. 2307; Danforth, 552 U.S. 264; Gomez-Perez, 128 S.Ct. 1931; Kennedy, 128 S.Ct. 2641;
Sprint Communications, 128 S.Ct. 2531; Santos, 128 S.Ct. 2020.
61
The opinions were characterized as liberal or conservative based on what the average voter would consider liberal
or conservative: i.e., in a criminal case a liberal opinion would side with the defense, in a discrimination case, a

9
conservative,62 and two did not clearly fall into either of these categories.63 This will not likely

come as a surprise to most, as the Chief Justice is generally viewed as a conservative and a

minimalist.64

Over this period of time, Kennedy dissented a total of sixteen times.65 Of these sixteen

dissents, seven of the majority opinions were conservative-leaning,66 eight were liberal-leaning,67

and one was not clearly classifiable.68 This also likely does not come as a surprise because of the

reputation that Justice Kennedy has gained as the Court’s “centrist” or “swing vote.”69

Ideological Leaning of Majority Opinion in Cases Where Justice Joined a Dissent

Figure 5





















































































































































































liberal opinion would find in favor of the litigant, etc. Note that this method of analysis is discretionary, and the
results may vary if the analysis were to be approached differently.
62
Ice, 129 S.Ct. 711; Hayes, 129 S.Ct. 1079.
63
Arthur Andersen, 129 S.Ct. 1896; Vaden, 129 S.Ct. 1262.
64
See, e.g., Grove, supra note 6, at 1; Supreme Court Considers Juvenile Sentences, ST. LOUIS POST-DISPATCH,
Nov. 10, 2009, at A6.
65
See infra notes 66, 67, 68.
66
Elahi, 129 S.Ct. 1732; Ali, 552 U.S. 214; Dep’t of Revenue of Kentucky, 553 U.S. 328; Hall Street Assoc., 552
U.S. 576; Irizarry, 128 S.Ct. 2198; Kentucky Retirement Systems, 128 S.Ct. 2361; Metropolitan Life Ins. Co., 128
S.Ct. 2343.
67
Gant, 129 S.Ct. 1710; Atlantic Sounding Co., 129 S.Ct. 2561; Clearing House Ass’n., 129 S.Ct. 2710; Melendez-
Diaz, 129 S.Ct. 2527; Spears, 129 S.Ct. 840; Danforth, 552 U.S. 264; Giles, 128 S.Ct. 2678; Santos, 128 S.Ct. 2020.
68
Washington State Grange, 128 S.Ct. 1184.
69
Albert W. Alschuler, Herring v. United States: A Minnow or a Shark?, 7 OHIO ST. J. CRIM. L. 463, 476 (2009);
John W. Whitehead & John M. Beckett, A Dysfunctional Supreme Court: Remedies and a Comparative Analysis, 4
CHARLESTON L. REV. 171, 186 (2009).

10
 In order to provide a better understanding of the cases involved in this study, the next

chart breaks down all of the dissents discussed by subject matter. Criminal cases involve all

issues pertaining to the rights of a criminal defendant, including such issues as the

reasonableness of searches and seizures and the admissibility of evidence. Litigation and

business cases encompass all cases involving business and workplace issues including

allegations of discrimination. The Bill of Rights and Fourteenth Amendment category excludes

those rights pertaining to the accused, but includes all other rights contained in the first ten

Amendments to the Constitution as well as those rights incorporated through the Fourteenth

Amendment. The remaining categories should be self-explanatory. These figures will be

discussed in greater detail in subsections three and four, detailing the cases where the Justices

agree and disagree, respectively.

Total Dissents: By Type









Figure 6

11
2. Authorship

Of the cases where either Justice dissented, Kennedy authored six dissents70 and Roberts

authored nine dissents.71 As indicated in Figure 6, the Chief Justice dissented in ten criminal

cases over the past two terms;72 he has written nearly half of the dissents in those cases.73

Additionally noteworthy is that Justice Kennedy dissented in four litigation/business cases in the

past two terms,74 and authored the dissent in three of those cases.75 The cases spanned various

areas of litigation and business including discrimination,76 employee benefits,77 arbitration,78 and

the blocking of assets.79 The majority opinion in all of these cases was conservative-leaning.

Roberts was in the majority in all four of these cases, although he did not write for the majority

in any of them. Justice Breyer, however, wrote for the majority in all three of the

litigation/business cases where Kennedy wrote a dissent.80


























































70
Ali, 552 U.S. 214; Dep’t of Revenue of Kentucky, 553 U.S. 328; Kentucky Retirement Systems, 128 S.Ct. 2361;
Metropolitan Life Ins., 128 S.Ct. 2343; Melendez-Diaz, 129 S.Ct. 2527; Elahi, 129 S.Ct. 1732.
71
Boumediene, 128 S.Ct. 2229; Danforth, 552 U.S. 264; Gomez-Perez, 128 S.Ct. 1931; Sprint Communications, 128
S.Ct. 2531; Caperton, 129 S.Ct. 2252; Spears, 129 S.Ct. 840; Hayes, 129 S.Ct. 1079; Denedo, 129 S.Ct. 2213;
Vaden, 129 S.Ct. 1262.
72
Boumediene, 128 S.Ct. 2229; Danforth, 552 U.S. 264; Kennedy, 128 S.Ct. 2641; Santos, 128 S.Ct. 2020; Gant,
129 S.Ct. 1710; Corley, 129 S.Ct. 1558; Melendez-Diaz, 129 S.Ct. 2527; Ice, 129 S.Ct. 711; Spears, 129 S.Ct. 840;
Hayes, 129 S.Ct. 1079.
73
Boumediene, 128 S.Ct. 2229; Danforth, 552 U.S. 264; Spears, 129 S.Ct. 840; Hayes, 129 S.Ct. 1079.
74
Hall Street Assoc., 552 U.S. 576; Kentucky Retirement Systems, 128 S.Ct. 2361; Metropolitan Life Ins. Co., 128
S.Ct. 2343; Elahi, 129 S.Ct. 1732.
75
Kentucky Retirement Systems, 128 S.Ct. 2361; Metropolitan Life Ins. Co., 128 S.Ct. 2343; Elahi, 129 S.Ct. 1732.
76
Kentucky Retirement Systems, 128 S.Ct. 2361.
77
Metropolitan Life Ins. Co., 128 S.Ct. 2343.
78
Hall Street Assoc., 552 U.S. 576.
79
Elahi, 129 S.Ct. 1732.
80
See supra note 75.

12
 Dissent Authorship: By Type



Figure 7
3. Agreements

Justices Roberts and Kennedy were in the dissent together a total of seven times over the

course of the 2007–2008 terms.81 All of these cases had liberal majority opinions. Of the

criminal cases where they agreed (five in total), two of these cases dealt with the Confrontation

Clause.82 The other three criminal cases dealt with various issues and yielded no particular

patterns.

One particularly interesting case where the two dissented in agreement with each other

was Danforth v. Minnesota.83 Roberts and Kennedy were the lone dissenters, and Roberts wrote

the dissent, which Kennedy signed onto.84 The case involved the retroactivity of Crawford v.

Washington85 on collateral review.86 The issue was whether a State could retroactively apply


























































81
Danforth, 552 U.S. 264; Santos, 128 S.Ct. 2020; Gant, 129 S.Ct. 1710; Atlantic Sounding, 129 S.Ct. 2561;
Clearing House Ass’n., 129 S.Ct. 2710; Melendez-Diaz, 129 S.Ct. 2527; Spears, 129 S.Ct. 840.
82
Danforth, 552 U.S. 264; Melendez-Diaz, 129 S.Ct. 2527.
83
Danforth, 552 U.S. 264.
84
Id.
85
Crawford v. Washington, 541 U.S. 36 (2004).
86
Danforth, 552 U.S. 264.

13
Crawford more broadly than precedent indicated.87 The majority’s argument, written by Justice

Stevens, distinguished Danforth from Teague v. Lane,88 a prior retroactivity case with a plurality

opinion written by Justice O’Connor that Justice Kennedy had signed onto.89

Roberts authored a very impassioned dissent mainly concerned with, what he believes is

the majority’s departure from precedent and the potential for inconsistent outcomes in cases

arising under similar circumstances.90 He also stressed the belief that the federal judiciary

should decide whether Crawford applies retroactively or not.91 Roberts says of the majority’s

conclusion, “The end result is startling: Of two criminal defendants, each of whom committed

the same crime, at the same time, whose convictions became final on the same day, and each of

whom raised an identical claim at the same time under the Federal Constitution, one may be

executed while the other is set free—the first despite being correct on his claim, and the second

because of it.”92 It appears consistent with Justice Roberts’ judicial temperament that his

concern in this case was the uneven application of a federal precedent. Justice Kennedy’s voting

here may be due in part to his initial understanding of the Teague precedent, but may also be due

to similar fairness concerns as Justice Roberts.


























































87
Id.
88
Teague v. Lane, 489 U.S. 288 (1989).
89
Danforth, 552 U.S. 264.
90
Id.
91
Id.
92
Id. at 1047.

14
 Together in Dissent: By Type











Figure 8

4. Disagreements

Over the span of the two terms, Kennedy and Roberts disagreed a total of twenty-four

times.93 Of these twenty-four cases, seven cases were criminal.94 Roberts was in the dissent in

five of these cases,95 and Kennedy was in the dissent twice.96 Another notable disagreement

occurred in cases related to immigration or those involving a foreign litigant: in these cases,

Roberts dissented twice, whereas Kennedy did not dissent at all.97

Three of the times that the two Justices disagreed, they found themselves in direct

opposition to each other with one Justice writing for the majority, and the other writing a

dissenting opinion.98 In all three of these cases, Justice Kennedy wrote the majority opinion and

Justice Roberts wrote the dissent.99 Additionally, all of these cases had liberal majority


























































93
See supra notes 50, 51, 57, 58.
94
See infra notes 95, 96.
95
Corley, 129 S.Ct. 1558; Ice, 129 S.Ct. 711; Hayes, 129 S.Ct. 1079; Boumediene, 128 S.Ct. 2229; Kennedy, 128
S.Ct. 2641.
96
Giles, 128 S.Ct. 2678; Irizarry, 128 S.Ct. 2198.
97
Denedo, 129 S.Ct. 2213; Dada, 128 S.Ct. 2307.
98
Boumediene, 128 S.Ct. 2229; Caperton, 129 S.Ct. 2252; Denedo, 129 S.Ct. 2213.
99
Boumediene, 128 S.Ct. 2229; Caperton, 129 S.Ct. 2252; Denedo, 129 S.Ct. 2213.

15
opinions.100 The vote in these cases was five to four, with the majority comprised of the

traditionally liberal justices and Kennedy.101

The chart below further breaks down each of the disagreements by type. The chart

indicates the Justice who was in the dissent in each of these types of cases.

Disagreements by Type (Chart Indicates the Justice who was in the Minority)









Figure 9

Over the two-term span, Roberts dissents in disagreement with Kennedy a total of fifteen

times.102 Eleven of these fifteen cases were 5 to 4 decisions,103 and nine104 of the five to four

decisions had a majority which consisted of the Court’s liberal justices plus Kennedy.105


























































100
Boumediene, 128 S.Ct. 2229; Caperton, 129 S.Ct. 2252; Denedo, 129 S.Ct. 2213.
101
Boumediene, 128 S.Ct. 2229; Caperton, 129 S.Ct. 2252; Denedo, 129 S.Ct. 2213.
102
Arthur Andersen, 129 S.Ct. 1896; Caperton, 129 S.Ct. 2252; Corley, 129 S.Ct. 1558; Haywood, 129 S.Ct. 2108;
Ice, 129 S.Ct. 711; Denedo, 129 S.Ct. 2213; Wyeth, 129 S.Ct. 1187; Vaden, 129 S.Ct. 1262; Altria Group, 129 S.Ct.
538; Boumediene, 128 S.Ct. 2229; Dada, 128 S.Ct. 2307; Gomez-Perez, 128 S.Ct. 1931; Hayes, 129 S.Ct. 1079;
Kennedy, 128 S.Ct. 2641; Sprint Communications, 128 S.Ct. 2531.
103
Caperton, 129 S.Ct. 2252; Corley, 129 S.Ct. 1558; Haywood, 129 S.Ct. 2108; Ice, 129 S.Ct. 711; Denedo, 129
S.Ct. 2213; Vaden, 129 S.Ct. 1262; Altria Group, 129 S.Ct. 538; Boumediene, 128 S.Ct. 2229; Dada, 128 S.Ct.
2307; Kennedy, 128 S.Ct. 2641; Sprint Communications, 128 S.Ct. 2531.
104
Caperton, 129 S.Ct. 2252; Corley, 129 S.Ct. 1558; Haywood, 129 S.Ct. 2108; Denedo, 129 S.Ct. 2213; Altria
Group, 129 S.Ct. 538; Boumediene, 128 S.Ct. 2229; Dada, 128 S.Ct. 2307; Kennedy, 128 S.Ct. 2641; Sprint
Communications, 128 S.Ct. 2531.
105
These Justices are Ruth Bader Ginsburg, John Paul Stevens, David Souter, and Stephen Breyer. They are
referred to as the Court’s liberal Justices because they tend to vote as a politically liberal individual would.

16
 E. 5 to 4 Decisions

Over the 2007 and 2008 Terms, the Court issued thirty-four opinions where the vote was

five Justices to four.106 Eleven of these cases occurred in the 2007 Term107 and twenty-three of

these cases occurred in the 2008 Term.108

1. 2007 Term: 5 to 4 Decisions

In 2007, Kennedy was in the majority in seven of the eleven five to four decisions.109 In

three of the cases where Kennedy was in the majority, he voted with the conservatives on the

Court, 110 and in the other four cases,111 he voted with the liberals on the Court. Consequently, in

each of these seven cases, Kennedy essentially cast the deciding vote. Roberts was in the

majority six times112 and in the dissent five times.113 Of the six times that Roberts was in the

majority, five cases involved a majority that was comprised of the conservative Justices plus

another Justice,114 and once he voted with a majority that was not ideologically split.115


























































106
See infra notes 107, 108.
107
Ali, 552 U.S. 214; Altria Group, 129 S.Ct. 538; Boumediene, 128 S.Ct. 2229; Dada, 128 S.Ct. 2307; Davis, 128
S.Ct. 2759; Heller, 128 S.Ct. 2783; Irizarry, 128 S.Ct. 2198; Kennedy, 128 S.Ct. 2641; Kentucky Retirement
Systems, 128 S.Ct. 2361; Plains Commerce Bank, 128 S.Ct. 2709; Sprint Communications, 128 S.Ct. 2531; Santos,
128 S.Ct. 2020.
108
Penn Plaza, 129 S.Ct. 1456; Gant, 129 S.Ct. 1710; Iqbal, 129 S.Ct. 1937; Atlantic Sounding, 129 S.Ct. 2561;
Bartlett, 129 S.Ct. 1231; Caperton, 129 S.Ct. 2252; Corley, 129 S.Ct. 1558; Clearing House Ass’n., 129 S.Ct. 2710;
Osborne, 129 S.Ct. 2308; FCC, 129 S.Ct. 1800; Gross, 129 S.Ct. 2343; Haywood, 129 S.Ct. 2108; Herring, 129
S.Ct. 695; Horne, 129 S.Ct. 2579; Melendez-Diaz, 129 S.Ct. 2527; Montejo, 129 S.Ct. 2079; Ice, 129 S.Ct. 711;
Ricci, 129 S.Ct. 2658; Spears, 129 S.Ct. 840; Summers, 129 S.Ct. 1142; Denedo, 129 S.Ct. 2213; Vaden, 129 S.Ct.
1262; Altria Group, 129 S.Ct. 538.
109
See infra notes 110, 111.
110
Davis, 128 S.Ct. 2759; Heller, 128 S.Ct. 2783; Plains Commerce Bank, 128 S.Ct. 2709.
111
Boumediene, 128 S.Ct. 2229; Dada, 128 S.Ct. 2307; Kennedy, 128 S.Ct. 2641; Sprint Communications, 128 S.Ct.
2531.
112
Ali, 552 U.S. 214; Davis, 128 S.Ct. 2759; Heller, 128 S.Ct. 2783; Irizarry, 128 S.Ct. 2198; Kentucky Retirement
Systems, 128 S.Ct. 2361; Plains Commerce Bank, 128 S.Ct. 2709.
113
Boumediene, 128 S.Ct. 2229; Dada, 128 S.Ct. 2307; Kennedy, 128 S.Ct. 2641; Sprint Communications, 128 S.Ct.
2531; Santos, 128 S.Ct. 2020.
114
Ali, 552 U.S. 214; Davis, 128 S.Ct. 2759; Heller, 128 S.Ct. 2783; Irizarry, 128 S.Ct. 2198; Plains Commerce
Bank, 128 S.Ct. 2709. The Court's conservative Justices are Antonin Scalia, Clarence Thomas, Samuel Alito, and
John Roberts.
115
Kentucky Retirement Systems, 128 S.Ct. 2361.

17
 

Figure 10 Figure 11

2. 2008 Term: 5 to 4 Decisions

Of the twenty-three five to four opinions issued in 2008,116 Kennedy was in the majority

in sixteen cases.117 Of these sixteen cases, Kennedy voted with the conservative justices twelve

times118 and with the liberal justices four times.119 Similar to the 2007 Term, Kennedy arguably

cast the deciding vote in all sixteen of these cases. In the remaining seven cases, Kennedy was in

the dissent120 five times and voted as part of a non-ideologically split Court twice.121 Roberts was

in the majority twelve times122 and in the dissent eleven times.123 In the 2008 Term, if the

majority opinion in a five to four decision did not consist of the conservative Justices plus

another Justice, Roberts was in the dissent.


























































116
See supra note 108.
117
See infra notes 118, 119.
118
Penn Plaza, 129 S.Ct. 1456; Iqbal, 129 S.Ct. 1937; Bartlett, 129 S.Ct. 1231; Osborne, 129 S.Ct. 2308; Fox
Television, 129 S.Ct. 1800; Gross, 129 S.Ct. 2343; Herring, 129 S.Ct. 695; Horne, 129 S.Ct. 2579; Montejo, 129
S.Ct. 2079; Ricci, 129 S.Ct. 2658; Summers, 129 S.Ct. 1142; Denedo, 129 S.Ct. 2213.
119
Caperton, 129 S.Ct. 2252; Corley, 129 S.Ct. 1558; Haywood, 129 S.Ct. 2108; Altria Group, 129 S.Ct. 538.
120
Gant, 129 S.Ct. 1710; Atlantic Sounding, 129 S.Ct. 2561; Clearing House Ass’n., 129 S.Ct. 2710; Melendez-
Diaz, 129 S.Ct. 2527; Spears, 129 S.Ct. 840.
121
Ice, 129 S.Ct. 711; Vaden, 129 S.Ct. 1262.
122
Penn Plaza, 129 S.Ct. 1456; Iqbal, 129 S.Ct. 1937; Bartlett, 129 S.Ct. 1231; Osborne, 129 S.Ct. 2308; FCC, 129
S.Ct. 1800; Gross, 129 S.Ct. 2343; Herring, 129 S.Ct. 695; Horne, 129 S.Ct. 2579; Montejo, 129 S.Ct. 2079; Ricci,
129 S.Ct. 2658; Summers, 129 S.Ct. 1142; Denedo, 129 S.Ct. 2213.
123
Atlantic Sounding, 129 S.Ct. 2561; Caperton, 129 S.Ct. 2252; Clearing House Ass’n., 129 S.Ct. 2710; Corley,
129 S.Ct. 1558; Gant, 129 S.Ct. 1710; Haywood, 129 S.Ct. 2108; Ice, 129 S.Ct. 711; Melendez-Diaz, 129 S.Ct.
2527; Spears, 129 S.Ct. 840; Vaden, 129 S.Ct. 1262; Altria Group, 129 S.Ct. 538.

18
 Figure 12 Figure 13

3. 5 to 4 Decisions: Observations

While Roberts was in the majority in slightly over fifty percent of the five to four

decisions issued over the past two years, it is clear that Kennedy’s vote on the Court plays a

significant role. In closely divided cases, not only does Justice Kennedy’s vote often decide

which way the majority will go, but Kennedy was also in the majority in almost seventy-five

percent of the Court’s five to four decisions over the past two years.

The fact that Kennedy still dissents a significant amount, as evidenced in Figures 2 and 4

does not necessarily diminish the influence that he has in cases where the Court is closely

ideologically divided. What the charts do not illustrate is that Kennedy often casts the deciding

vote in cases that could be considered high profile or that generally draw public interest. For

example, in District of Columbia v. Heller, the Court found a Washington, D.C. handgun law in

violation of the Second Amendment, an outcome that a political conservative would find

favorable, and which spurred much controversy and caused many to question the future of the

Court’s Second Amendment jurisprudence. 124 Conversely, in Kennedy v. Louisiana, which dealt

with the capitalization of child rape, the Court sided with the criminal, finding that imposing the


























































124
District of Columbia v. Heller, 128 S.Ct. 2783 (2008).

19
death penalty on child rapists constituted cruel and unusual punishment; a decision which

frustrated many conservatives.125 It is Kennedy’s record here that likely spurs the belief that

Kennedy is the Court’s swing vote. As long as his voting record continues along the trend that

seems to have developed over the last two terms, this moniker appears to be fitting.

IV. Conclusions

The preceding analysis revealed several patterns in the voting of both Chief Justice John

Roberts and Associate Justice Anthony Kennedy. First of all, the Chief Justice is voting largely

like a political conservative. This does not mean that he reaches what may be understood to be a

conservative result in every case, however, in the vast majority of cases in which he dissents, he

is dissenting from a liberal majority opinion. This is at least an indication that, in the sampling

of cases analyzed, the Chief Justice felt that it was necessary to express his disagreement with a

liberal result. Secondly, Justice Kennedy’s vote remains valuable in ideologically divided five to

four decisions. Largely, Justice Kennedy is the deciding vote in such cases. Kennedy’s

reputation as the swing or deciding vote may be more appropriate than his reputation as a

centrist, as evidenced by the wide variety of cases where he has cast the deciding vote. Despite

Justice Kennedy’s voting in five to four decisions, the two Justices remain in agreement the

majority of the time and both dissent with relatively similar frequency.

Analyzing the voting records of judges does not necessarily provide conclusive results,

but is at least a step in understanding and appreciating what drives judges to reach their

decisions. Even the most rudimentary understanding of what aids judges in decision-making

allows advocates and analysts an insight into the workings of any court. While it is certainly not

possible to predict with certainty the way that judges will vote in any particular case, identifying


























































125
Kennedy v. Louisiana, 128 S.Ct. 2641 (2008).

20
patterns or tendencies allows one to begin to understand this complex judicial process. Justice

Cardozo again says it best when he writes, “[w]e may try to see things as objectively as we

please. None the less, we can never see them with any eyes except our own.”126


























































126
CARDOZO, supra note 3, at 13.

21