Kennedy, The Magic 8-Ball Justice

by John Holbo on July 1, 2018

Some readers are failing to appreciate the aptness of my Kennedy-as-Magic-8-Ball analogy. In some cases this may by due to infirm powers of reading or reasoning; in other cases, to ignorance of the law, or of recent legal history. In some cases it may be due to insufficient familiarity with a children’s toy. No matter, I shall explain.

The Magic 8-Ball has 20 possible responses: 10 positive, 5 hazy or non-commital, 5 negative. And that is what Kennedy was. Half the time a rock-ribbed conservative, but half the time either liberal or hazy.

Thus, the following would be one way to keep the Supreme Court above the partisan fray, post-Kennedy, while acknowledging the power of partisanship, and according the sitting President a certain privilege when it comes to determining the make-up of the court.

Let Republicans appoint 4 justices and Democrats appoint 4 justices. The 9th justice will be, literally, a Magic 8-Ball. In many cases the ball will not need to be consulted. You cobble together a majority by other means. That is optimal. But, if there is a 4-4 partisan split, the ball decides. Then an opinion is written in accord with what it says. For example, if its deciding vote is ‘definitely yes’ the petitioner wins and it’s one of those big, consequential decisions. If it’s only ‘signs point to yes’, you write it up as a narrow decision. If it says ‘my sources say no’ then the petitioner loses, with lots of black letter explanation for the loss. If it says ‘my reply is no’ then it is more one of those ‘living Constitution’ pragmatic affairs. If it’s
‘reply hazy, try again’, you write an Kennedy-esque opinion that kicks it back to the lower courts. So forth.

If there is a conservative retirement under a Republican President, the President appoints a conservative replacement. No muss, no fuss. If a liberal retires under a Republican, then the Democrats in the Senate (let’s say) get to nominate a replacement. BUT (this is important!), if the current Magic 8-Ball is liberal-tilted (10 liberal ‘yes’es; 5 hazy ‘maybe’s; 5 conservative ‘no’s) then, in the case of a fresh Democratic appointment under a Republican, the Republican President also gets to swap in a conservative-tilted Magic 8-Ball.

You might think this means we have to change the existing Magic 8-Ball design but we don’t. We just stick a Post-It on the ball that says either ‘liberal’ or ‘conservative’. The Post-It tells us what its ‘yes’ vs. ‘no’ pronouncements mean. In this way we can have a court that is split – enough so that both sides can have some hope for victory. If not today then tomorrow. And yet you give Presidents some power to tilt the court their way.

[UPDATE: Yes, I see now that ‘yes’ can’t mean both ‘petitioner wins’ and ‘conservatives win’ (or ‘liberals win’.) It’s the latter option we want. The ball is partisan, yet fickle; not petitioner-friendly.]

Obviously this is a silly proposal for an amendment to the Constitution, but it’s useful as a toy model of what we’ve been living with for several terms. It was a conservative court, because Kennedy was conservative. But it was also a Magic 8-Ball court, because that was Kennedy, too. And all that is done now. The Federalist Society exists, quite literally, to ensure: no more Magic 8-Balls. (Originalism, yes. But that’s like: you have to wear a tie. The main thing is: you have been vetted for ideological soundness and dependability.) Necessarily, this means that the left will cease to regard future decisions of the court – that break along party lines – as having any supra-partisan institutional or ‘balls and strikes’ blackletter legitimacy. And the left will, of course, be quite right. Expect court-packing at the first opportunity. (If the other side is not going to show judicial restraint, why should you? No reason.)

Obviously the thing to do is amend the Constitution to establish 18-year terms. But, paradoxically, if you are going to have life-time appointments, the thing to do is to hunt down those Magic 8-Balls out there (the Souters and Kennedys. They are the ideal ‘conservative’ option, insofar as they are the only hope of conserving the reputation of the Court as non-partisan. But that hope is dead.)

One last thought. A lot depends, going forward, on John Roberts. He’s a conservative, but he’s also an institutionalist, and that’s a circle that’s hard to square. He’s the new swing vote, also the Chief. He has a hard choice: what is he going to be hated for, forevermore? He can strive to preserve the court’s (tattered) reputation by somehow holding it above the partisan fray, by working hard to craft decisions that do not break down, consistently, on partisan lines. He can do that by going for ‘narrower’ decisions that can win at least one liberal vote. If he does that, conservatives will hate him for a traitor. (And they will be right.)

Or he can be the partisan leader of a conservative majority bloc that steamrolls the liberals again and again and again. If so, conservatives will love him but historians will write him up at the Chief who fed the Supreme Court to the Moloch of partisan politics. (And they will be right.)



John Holbo 07.01.18 at 6:48 pm

I guess it should be called a Magic 9-Ball.


John Holbo 07.01.18 at 7:07 pm

Also, if you really want to argue about textualism vs. originalism, I guess we can do that.


Dr. Hilarius 07.01.18 at 7:27 pm

Justice Thomas has also functioned as a Magic 8-ball by virtue of odd-ball opinions falling outside those of other justices. The best example is Melendez-Diaz v. Massachusetts, a 2009 case involving the status of forensic lab reports and the 6th Amendment right to confrontation.

Scalia wrote the “majority” opinion joined by Souter, Ginsburg, and Stevens. Thomas concurred with the result but rejected Scalia’s reasoning and put forward his own idiosyncratic analysis. Kennedy dissented and was jointed by Alito, Roberts, and Breyer. So there was a majority for the result but not for its basis.

This leaves Thomas’ opinion as the controlling authority (according to Jeff Fisher who argued the case for the defense). State courts continue to struggle with how to apply Melendez-Diaz given the fractured majority and Thomas’ analysis that admissibility hinges on the form and relative formality of forensic evidence reports rather than their content. A very hazy holding.


Mike Adamson 07.01.18 at 8:08 pm

The analogy is apt. I would take issue with your assumption that the Democrats will pack the Court when the opportunity arises. The current party leadership still appears reluctant to upset the institutional apple cart, indeed it remains convinced that the best path leads through picking up disaffected centrists rather than mobilizing the liberal constituency. I can’t imagine the current crop using such a radical tactic in the fear that they will present as wild eyed partisans who might scare away regular Americans. I do, however, support the change of the name to Magic 9 ball.


John Holbo 07.01.18 at 8:20 pm

Also, my description of how the Ball would work is ambiguous. ‘Definitely yes’ can’t mean both ‘plaintiff wins’ AND ‘conservatism/liberalism wins’. The latter is what we want.


John Holbo 07.01.18 at 8:24 pm

Also, it may sound like I’m insulting Kennedy, like I’m mad at him for retiring and want to say he was just an 8-ball in a robe. I am mad at him for retiring but I also think he was smarter than his critics gave him credit for. But he wasn’t important due to his smarts. He was important – and valued – due to his playing a role that, in fact, an 8-ball could have played.


LFC 07.01.18 at 9:18 pm

I vaguely remember the magic-8-ball from my childhood, so I understood the reference the first time.

But the problem is you make it sound as if Kennedy was quite unpredictable. A lot of the time he wasn’t unpredictable. People who have followed the SCOTUS a lot more closely than I have will, I think, say that his preferences were fairly well established: he voted w the conservatives on most if not all of the economic/business/corporation-vs.-union cases, ditto the criminal procedure cases, ditto role of money in politics (Citizens United), ditto quite a lot else. The only headline issues, afaict, on which he voted w the liberals were gay rights, abortion (up to a point), affirmative action (up to a point), restricting the death penalty (he wrote the opinion, iirc, saying it cdn’t be applied to anyone under 18), and habeas corpus in the case of Boumedienne v. Bush. Doubtless I’m leaving out a couple of things, but not a lot. Those are attention-grabbing cases, but they’re not that big a part of the Ct’s docket.

The comparison w Souter is inapt. Souter over time became a quite reliable member of the liberal bloc. Kennedy did not. Kennedy was basically a conservative, who had some (laudable) notions about individual ‘dignity’ that led him to favor same-sex marriage and a few other issues on the left side of the Court. But pretty much a conservative judge, not really a magic 8 ball.

To end on a note of agreement, I think what you say at the end about Roberts’s role is right.


John Holbo 07.01.18 at 9:54 pm

“People who have followed the SCOTUS a lot more closely than I have will, I think, say that his preferences were fairly well established”

That’s right. But the gerrymander case, in particular, right at the end, was an example where folks weren’t sure which way he’d jump.


mw 07.01.18 at 11:30 pm

Expect court-packing at the first opportunity.

Isn’t the first opportunity actually right now, by Trump?

(If the other side is not going to show judicial restraint, why should you? No reason.)

Doesn’t that analysis apply in reverse? If Democrats make it clear that they’ll engage in packing at the first opportunity, wouldn’t Trump be foolish not to be the first mover? If he were to add another 4-6 justices, the conservative majority would be truly massive and overturning it would require heroic levels of packing.


nastywoman 07.02.18 at 4:15 am

– but what’s about these judges as a –
“If a tree falls in a forest and no one is around to hear it, does it make a sound?”- analogy?

Let’s say my homeland keeps on doing what my homeland does – all kind of ”wonderful things” -(like – Ellen getting married) – and some old and crazy dudes – (called ”judges”) – keep on deciding that Ellen can’t get married -(or all other ”crazy stuff”) – which nobody hears – because it happens in ”some forest far – far away” – or it doesn’t happen at all – as Jimmy always finds out – when he sends somebody on Hollywood Blvd and ask:

What are the Supremes?


Would that mean:
They Supremes sing in the forest completely out of impotance – and everything what’s left from them will be just some ”funnies” for Americas Comedy Boom?


Ben 07.02.18 at 4:50 am

The baby jailers won’t pack the court now because as the court stands they’ve won for a generation. They’ll throw tantrums to prevent any change that could alter that.

If they try to expand the court, they get the blowback and the Dems get first crack at a world where that move is just one of the rules of the playground

So expect Trump to try and kill court packing in the crib


mw 07.02.18 at 1:40 pm

“So expect Trump to try and kill court packing in the crib”

I could Republicans proposing a constitutional amendment to fix the court at 9. If Democrats won’t support it, Trump would then claim permission from Democrats to go ahead and enlarge the court. And — right on cue:


Trader Joe 07.02.18 at 2:59 pm

The whole question of court packing is where it pays to remember the law of unintended consequences.

It was the democrat’s own Harry Reid who blew-up the cloture vote related to approving appellate court justices that then allowed the McConnell senate to do what it did in first blocking Garland and then approving Gorsuch…the exact move which will be applied to Kennedy’s replacement and why the urgency to get it across the goal-line before mid-terms.

Had the Dems either not done what they did under Reid, or alternatively taken a gentlemanly punt on Gorsuch and tossed them 8 or 10 Dem votes to maintain the 60 in confirming Gorsuch (which was going to happen one way or the other as McConnel made clear) They would have have been able to force a 60 vote to confirm subsequent Supremes (not inconsequential given the age of Stevens and RBG).

As it is, they will get nothing and will have to hope that one of the conservatives eventually either retires or dies when the Dems have control of congress. If the Rs do manage to retain control of the Senate (a big if) watch for Thomas to be the next ‘retirement’ next year.


Abby 07.02.18 at 3:27 pm

“That’s right. But the gerrymander case, in particular, right at the end, was an example where folks weren’t sure which way he’d jump.”

I got the distinct impression that Kennedy wanted to retire last year and promised himself that he could do so after this term if he could live with all the majority opinions this term. This would explain his somewhat uncharacteristic positions in such cases as the gerrymandering and cake shop cases. To extend your analogy poorly, if he determined that his magic eight ball was broken, he could allow himself to quit.


SamChevre 07.02.18 at 3:58 pm

I don’t entirely disagree, except with the conclusion:

historians will write him up at the Chief who fed the Supreme Court to the Moloch of partisan politics.

I think Warren has that title so firmly cemented that it will be impossible to pry it off and give it to anyone else.


LFC 07.02.18 at 4:35 pm

@Trader Joe
What makes you think Thomas wants to retire? And, given that he votes reliably enough w the conservatives (although often attaching concurrences reflecting his particular approach), why shd the Trumpists even want him to? (The only reason cd be his age, but I don’t think that’s enough reason for them to put pressure on him.) (Also, you meant Breyer in the above comment, not Stevens.)


Whirrlaway 07.02.18 at 5:03 pm

I suppose the Founders intended the Supreme Court to make decisions arrived at by spirited discussion, rather than by voting along party lines. The notion of a “swing justice” is absurd and voting by larger numbers won’t help. Better to go with the ball, it’s harder to game.


Layman 07.02.18 at 5:23 pm

Trader Joe: “It was the democrat’s own Harry Reid who blew-up the cloture vote related to approving appellate court justices that then allowed the McConnell senate to do what it did in first blocking Garland and then approving Gorsuch.”

This is simply wrong. You could argue that Harry Reid provided McConnell with the motivation, but Mitch could always have done what he did regardless of what came before. Reid’s action didn’t ‘allow’ what McConnell did, because what McConnell did was already ‘allowed’; you just had to be sufficiently craven to do it. And as for motivation, I think you have an uphill argument. I think McConnell does what he does with Garland regardless of what has come before. It’s of a piece with his whole approach to the Obama presidency.

And the idea that Dems giving Gorsuch enough votes to reach 60 would result in Mitch honoring the 60-vote rule now is, well, priceless. I don’t think you’ve been paying much attention.


Lidl_Janus 07.04.18 at 1:21 pm

“I guess it should be called a Magic 9-Ball.”

Rihanna would be an interesting nominee, but I don’t think she has the legal experience for the SCOTUS.

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