What I know about wetlands regulation could fit in a thimble, but I was struck in reading this description by William Buzbee of the breakdown of opinions in Rapanos/Carabell, today’s set of Supreme Court opinions interpreting the Clean Water Act. Buzbee wrote: “First and most importantly, this case resulted in a 4-1-4 split, with a plurality opinion of four Justices (Scalia, Roberts, Thomas and Alito), a Kennedy concurrence in the judgment and his own opinion strongly rejecting the Scalia plurality approach, a brief concurring opinion by CJ Roberts acknowledging that there is no Court opinion, but stating that in this situation Kennedy’s opinion is key (via a cite to the Marks case), and then the four Justice dissent (Stevens, Souter, Ginsburg, Breyer).”
This reminded me so much of what happened in the Vieth partisan gerrymandering case from 2004, in which the Court had a similar 4-1-4 split, with Justice Kennedy serving as the deciding (but indecisive) vote in a case in which Justice Scalia on one hand and Justice Stevens on the other set out strong polar oppostie positions on a contentious issue.
We’ve all been suspecting what Jack Balkin, Sam Issacharoff, and others have predicted: Justice Kennedy is the new median voter on the Court. What has not been so clear is how often he would be put in the role of the sole decisive opinion writer, a new Justice Powell in Baake as it were (or even the new Justice O’Connor). It appears he’s going to be put in that role a great deal.
The implications for election law are profound, especially in the Texas redistricting and Vermont campaign finance cases, which could be decided as early as Thursday. The big question mark in these cases has been the role of C.J. Roberts and Justice Alito. Given all the talk of moderation and moving slowly on the Court, I have been predicting that the Court could move slowly, even if it is going to change election law in conservative directions (such as by making it more difficult for jurisdictions to impose campaign finance rules). It wasn’t that I had been predicting that either of these Justices would side with the four more liberal members of the Court. It is the idea that any decisions changing the status quo would be gradual, relying upon stare decisis where possible and moving slowly in a minimalist fashion.
But the wetlands case suggests that CJ Roberts and Justice Alito are not necessarily interested in staking out moderate positions on contentious issues. If that’s the case, it magnifies even greater the role that Justice Kennedy is likely to play in these cases, and soon. On that note, it might be worth recalling that there was one provision of McCain-Feingold’s soft money rules that Justice Kennedy was willing to uphold in the McConnell case. He voted (with the vote of CJ Rehnquist but without that of Scalia or Thomas) to uphold BCRA section 323e, which barred federal candidates from soliciting soft money. He wrote:

I agree with the court that the broader solicitation regulation does further a sufficient interest. The making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payment (by granting his request). Rules governing candidates’ or officeholders’ solicitation of contributions are, therefore, regulations governing their receipt of quids. This regulation fits under Buckley‘s anticorruption rationale.

I don’t expect Justice Kennedy to vote to uphold the Vermont campaign contribution limits. But he could well be the vote that maintains the constitutionality of at least some contribution limits. And as in Vieth and the wetlands case, his opinion–in this case setting forth a very strict test for which contribution limits might be upheld—could again control, this time changing the landscape of campaign financing in the U.S.