Pratik Shah Quoted in Congressional Quarterly on Possible New Role for Breyer in Supreme Court Term

Pratik Shah, co-head of Akin Gump’s Supreme Court and appellate practice, was quoted in the Congressional Quarterly article “The Supreme Court’s New Maestro” regarding the new role that Justice Stephen Breyer could play in the Supreme Court term that began this week.

With only eight members currently on the court, the article reports that the justices have delayed scheduling oral arguments on cases that might result in 4-4 ties. Breyer is cited in the article for his a pragmatic approach that “puts him in position to hold sway and moves him closer to the court’s ideological center than other liberal justices.”

Shah, who clerked for Breyer, said his former boss has had more currency on the court in recent terms and wrote his most notable opinion in a 5-3 decision last year to strike down Texas abortion restrictions. “I would expect that to continue into this term,” he said. “I think what you’re seeing, as the court’s makeup and balance shifts, it’s gravitating to a ground that Justice Breyer has occupied for a long time.”

Justice Anthony Kennedy, the article notes, remains a key vote on the court. He was in the majority for 98 percent of the cases last term and joined the three justices on the court’s liberal wing in that Texas abortion case.

Usually in that situation, one in which Kennedy has historically been the deciding vote, he will use his prerogative as the most senior judge in the majority and write the opinion himself, according to Shah. But instead, Kennedy assigned Breyer to author the opinion. That suggests, Shah said, that Kennedy “had confidence it was something he could join, as opposed to something too sweeping or not the right tone or content.”