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The power of five on the Supreme Court

The justices on the Supreme Court still have a few more opinions to issue this term, even if their minds are drifting toward their summer vacation plans.

The final batch of opinions might include a 5-4 decision decided by the “swing” vote of Justice Anthony M. Kennedy. Court watchers often predict that outcome for a case when a petition is granted. But chances are the outcome was determined when the justices decided to take the case in the first place, according to Lyle Denniston, who has covered the Supreme Court for more than 50 years.

While it takes only four justices to agree for the court to take up a case, the “informal rule” is that there must be a fifth on board, Denniston said last week during a panel discussion at the Maryland State Bar Association’s Annual Meeting in Ocean City.

“The four are not going to grant a case if they’re not certain they have a fifth,” he said. “The court is acutely aware of the depth of the divisions that affects the cases being heard.”

Dennison cited the court’s denying petitions filed by detainees at Guantanamo Bay. Kennedy, according to Denniston, wants to hear the cases. But with Justice Elena Kagan recusing herself because of her time as solicitor general, Kennedy has been unable to muster a fifth vote for his side, Denniston said.

As a result, Denniston said, the D.C. Circuit of the U.S. Court of Appeals has become “the official court for detention cases.”

Denniston, incidentally, does not believe there’s a liberal/conservative divide on the court since Justice John Paul Stevens retired last summer.

“I do not think we have a liberal justice any more,” he said. “Kagan and [Justice Sonia] Sotomayor are more liberal than [Justice Antonin] Scalia, but they are no Bill Brennan.”