Blackmun would go on to be the court’s champion of abortion rights, starting with his opinion in Roe v. Wade in 1973. But it was less clear at the time that Blackmun would so strongly endorse abortion rights, and Douglas worried about the outcome.
It’s difficult to assess the effect of Justice Kennedy’s new power.
His pivotal role until now — somewhere between the more conservative and the more liberal justices — has allowed him to dictate how far the court could go in many areas.
In 2007, for instance, Justice Kennedy was unwilling to join the four conservatives to eliminate considerations of race in voluntary efforts by public school systems to increase diversity in their classrooms.
Perhaps, Mr. Garrow said, Justice Kennedy might move away from the conservatives in close cases, knowing that disagreeing with them “would put him in the decision maker’s seat.”
Or, he said, Chief Justice Roberts might come to the realization that “he needs to work all the more to keep Kennedy inside the conservative tent.”
Another possibility is that Justice Kennedy might keep an opinion for himself that Justice Stevens would have handed off to another liberal justice. Justice Kennedy might write the same decision more narrowly than Justices Stephen G. Breyer or Ruth Bader Ginsburg would, Mr. Dorf said.
Doug Kendall, president of the liberal-leaning interest group Constitutional Accountability Center, worries that Justice Stevens‘ retirement means there is “no guarantee that any of the term’s biggest opinions will be written by a member of the court’s left flank.”
Justice Stevens, who was the senior justice beginning in 1994, was accomplished at producing 5-4 opinions that “moved the law significantly in a progressive direction,” Mr. Kendall said.
With Justice Kennedy calling the shots, he said, the liberals might have to get used to smaller victories.
By Douglas Holtz-Eakin
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