Supreme Court “Majoritizing”: What Justice O’Connor and Justice Kennedy Can Tell Us About the Near Future

April 1, 2017

Type: Law review article
Author: William Usnick & Lee Usnick
Source: S. L. J.
Citation: 27 S. L. J. 149 (2017)

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The number five is one of the most important numbers in the United States: the number of votes needed for a majority on the United States Supreme Court. Few justices in recent history have more frequently been, or are more adept at becoming the fifth vote than Justice O'Connor. Even fewer justices have found their vote to be as impactful on American life and law as Justice O'Connor. This paper will examine her legacy in that role by comparing her to another "frequent fifth," Justice Kennedy, and in so doing, attempt to reveal some insight, however small, as to how a justice becomes "the fifth vote."

II. Biographical Background

The back-story of a justice can yield insights into the possible origins of their jurisprudential inclinations, such as Justice Scalia's father's academic career as translator and linguist1 being a source of his originalist and textcentric approach to constitutional interpretation. Though such biographical explorations risk caricaturizing a justice's jurisprudence as primarily the product of circumstance, and belittles the slow formation of complex legal theories. Examining a justice's biographical background can give valuable insight into how he or she maneuvers the interpersonal landscape of the Court in order to further their substantive jurisprudence. The pursuit of a majority is more the product of one's upbringing, experience, and worldview than the substantive jurisprudence end a particular justice is working toward.


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