Swing judges

Although the prefix attached to the Supreme Court derives from the name of the Chief Justice, the most important member of the bench is actually the swing judge. He/she effectively decides which of the two ideological blocs ‘wins’ the case. Swing judges tend to adopt a moderate stance and will inevitably wield excessive influence when the Court is evenly divided between conservatives and liberals. At the present time, the swing judge is Anthony McLeod Kennedy. His status as the swing judge effectively awards him a significant level of power within the Court. Indeed, one might depict the present system as the Kennedy Court rather than the Roberts Court.

 

Anthony Kennedy was appointed in 1988 by a Republican President on the assumption that he would adopt a broadly conservative stance. However, he has proven to be an ideologically moderate figure on the bench. Moreover, he has effectively decided the outcome of a high number of cases that would otherwise have been split evenly between the four conservatives on the bench and the four liberals. From 2006 to 2012 Anthony Kennedy voted with the majority in 5-4 verdicts in 80% of all documented cases. Some of those close decisions have been very important in political terms, such as the Heller (2008) ruling on the second amendment and the Citizens United judgment (2010) on the role of PACs.

Kennedy’s status as the swing judge could obviously change when the new President appoints someone to replace Scalia. It is also worth noting that no-one has the position of a swing judge indefinitely. For instance, Sandra Day O’Conner used to be the Supreme Court’s swing judge until she was effectively usurped by Kennedy. It is also worth noting that the swing judge will not necessarily vote with the majority in every single case; as was the situation during the ruling on Obamacare in which Roberts was in effect the swing judge.