Eminent Domain

Carve that into a tree or write it into the latest volume of the US Reports. Justice John Paul Stevens is the eldest member of the Supreme Court. He can also count to five. The combination of decades of experience and pre-school level math skills have clued him in on two important things: Justice Kennedy is the swing vote for any majority, and Justice Kennedy loves to have his ego stroked.

Check out these posts from Ed Whelan at Bench Memos. Why on earth did Stevens include the Georgia v Tennessee Copper Co. case in Massachusetts v EPA? It is the case, as Chief Justice Roberts said, that the petitioners never cited in their briefs before the Court or the DC Circuit, that not one of the many amici supporting petitioners ever cited, and that not one of the three DC Circuit judges ever cited. Where the hell did this case come from? Justice Kennedy brought it up during oral argument. Whelan thinks that Stevens put it into the opinion to get Kennedy's vote...

It seems quite likely that everyone but Kennedy recognized that Tennessee Copper was irrelevant to the standing question but that Stevens drafted his opinion to pander to Kennedy's vanity - and Souter, Ginsburg, and Breyer gladly signed on. Such is the sorry state of Supreme Court decisionmaking by these five justices.

This isn't the first time that Stevens has done this, as evidenced by the second Bench Memos link.

Justice William Brennan used to tell his clerks, "Five votes can do anything around here." Stevens knows this. He learned well from the politicking Brennan how to win votes and influence Justices.