The Median Justice, Again.

Here is the opening sentence in Linda Greenhouse's article on the most recent Supreme Court arguments: "By the time the Supreme Court finished hearing arguments on Monday on the student-assignment plans that two urban school systems use to maintain racial integration, the only question was how far the court would go in ruling such plans unconstitutional."

There is nothing surprising in this outcome; indeed, the real surprise would be if the oral argument suggested a contrary outcome.

When a new Justice is appointed, the most important effect is usually not that Justice's positions on various issues, but rather whether the appointment changes the median Justice on the Court. In a multimember court, the Justice or Justices in the middle determine most of the hotly contested outcomes. Before this year, the median Justice was Sandra Day O'Connor. It is now Anthony Kennedy. Anthony Kennedy has opposed race-based policies in virtually every case since he became a Justice. Hence, unless a case before the Court is directly on point with cases in which the Court has upheld race-based policies (which is not very likely given the reason why the Court takes cases for review), it is very likely that Kennedy will vote to strike them down.

When Alito was nominated to the Court, I explained what I thought this meant. I predicted that the Court would probably come out differently on those issues where O'Connor and Kennedy were most likely to disagree. One of those issues is religion; Kennedy and O'Connor were on opposite sides in the Ten Commandments cases last Term. Another is affirmative action and related race-based integrative programs. A third is campaign finance regulation.

We are now seeing these effects in various cases before the Court. But the likely results could have been predicted long before. Anthony Kennedy may surprise everyone and vote to uphold one or more of these voluntary integration plans. But given his previous voting record on affirmative action and majority-minority voting districts, I wouldn't count on it.