Kevin King’s commentary was included in a Roll Call article exploring the rightward shift of American law stemming from the U.S. Supreme Court’s recent rulings, calling attention to the steady stream of 6-3 decisions in major cases along with a flood of emergency appeals sparked by the Trump administration.
“The middle three are in the majority an overwhelming majority of the time,” Kevin said of Chief Justice John G. Roberts Jr. and Justices Amy Coney Barrett and Brett M. Kavanaugh. “They have the swing votes, they have the control, they are exercising a significant amount of control over the court’s direction.”
Kevin said that he’s seen “political accountability as a major theme” of the current court, with the justices choosing and deciding cases on the margins of where experts and agencies can act apart from elected or appointed officials. “The powers and scope of administrative agencies continue to be front and center on the court’s docket and continue to be the center of the court’s attention,” Kevin said.
Kevin pointed to the decision as examples of his theory, citing a case upholding the 2010 health care law’s preventative care coverage mandate because members of the review board for the mandate were removable by the secretary of Health and Human Services, as well as the decision upholding a Federal Communications Commission program because the Commission retained control over the program even though another entity managed it. In both of those cases, the three justices in the middle joined the three justices on the liberal wing of the court to form the 6-3 majority.
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