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. . . it was Byron White who was meant to have said that adding a single new justice to the high court always created a whole new court, and this year we are learning that subtracting a single justice might have the same effect. It’s not just one less vote.
There is ample speculation out there that Scalia’s absence has moved Samuel Alito to the vocal right wing of the court, and, as Mark notes, it has perhaps even moved Clarence Thomas to speak at oral argument. One frequently reads that Scalia’s absence has forced the chief justice to forge new consensus and that Kennedy surely seems newly free to be you and me, with the man who so often belittled him gone. Justice Sonia Sotomayor has found a clarion voiceon race and the rights of criminal defendants, Justices Elena Kagan and Stephen Breyer seem to have figured out ways to work the levers and broker improbable deals, and Justice Ruth Ginsburg continues to prove that nothing happens at the court that she hadn’t anticipated for years. We’ve talked a lot about the 4–4 court, but in some ways we are seeing a court that is reconfiguring itself around the loss of a dominant force in a very small world. There is a good deal of retrenchment on the court’s right, some feints back to the center, and the left seems to be testing some boundaries. In a way all of these conversations about the court’s shift to the left this term make me realize that if you spend your whole intellectual life scrapping with just eight other people, they become just a bit too important in shaping how you think and act.
