Justice Kennedy Casts
Deciding Votes
By AP from the
NYTimes on the Web, April 7, 2007
WASHINGTON -- Justice Anthony
Kennedy has become the object of his colleagues' attention on a Supreme Court
with four reliably conservative votes and four dependably liberal.
Six cases before the Supreme Court this term have come down to 5-4 votes.
Kennedy, alone, was in the majority every time.
Two cases last week -- including one the court turned down -- highlighted his
pivotal role in shaping just about any matter of consequence before the
justices.
It is his vote that could decide pending cases on abortion and school
integration, as well.
In a victory for environmentalists in the first Supreme Court case on global
warming, Kennedy showed he can frustrate conservatives who hoped the court would
move firmly to the right with two appointees of President Bush on board.
A setback for Guantanamo detainees, in the other case, demonstrated that the
court's conservative and liberal blocs must lean toward the middle or risk
losing Kennedy's vote and, thus, a majority.
''When you have a 5-4 majority, it's a majority you can lose,'' said Pepperdine
University law professor Douglas Kmiec.
Like Lewis Powell and Sandra Day O'Connor before him, Kennedy has become the
court's ''swing justice,'' a term he dislikes because he says it implies
vacillation.
Yet the limited evidence so far this term shows how well the phrase fits.
Kennedy was part of the five-vote majority in the environmental decision last
week that criticized the Bush administration's inaction on global warming.
On the same day, Kennedy's importance also was evident in a decision not to hear
cases of prisoners who want to use U.S. courts to challenge their indefinite
detention at the Guantanamo Bay naval base in Cuba.
Justice John Paul Stevens, author of two earlier decisions that gave the
prisoners some legal protections, could have joined the other three liberal
justices and been the fourth vote needed to hear the cases.
But, while four justices can compel the court to hear an appeal, it takes five
votes to fashion a majority once the case is heard. Stevens, leader of the
court's liberal bloc, ''was worried that Kennedy wouldn't be the fifth vote at
this point in time,'' said Duke University law professor Erwin Chemerinsky.
''He thought the best chance of getting Justice Kennedy's vote was to wait until
Justice Kennedy was ready to hear the cases.''
Kennedy and Stevens issued a joint statement saying it was premature for the
Supreme Court to hear the cases now.
In his 19 years on the court, Kennedy has been criticized for deciding cases
without an overarching judicial philosophy. As a result, his vote appears
to be up for grabs from one case to the next.
He has infuriated conservatives with decisions in favor of gay rights, abortion
rights and against school prayer. His votes against affirmative action and
in criminal matters have left liberals cold.
Kennedy has rejected the criticism, saying he has a well-grounded centrist
approach to issues. There is no doubt, however, that lawyers who argue
before the court often aim their arguments at the 70-year-old Californian who,
they believe, can be swayed.
Kennedy's fellow justices do it, too.
After Kennedy raised a 100-year-old decision in the global warming case that
neither side referenced in arguments, both Stevens and Chief Justice John
Roberts dealt with the case in their opinions -- perhaps to attract Kennedy's
vote.
The liberal justices' pursuit of Kennedy has been made harder by Roberts'
arrival as the amiable leader of the court's conservatives, Kmiec said.
Roberts appears more interested than his predecessor, the late William
Rehnquist, in seeking to attract colleagues' support, especially Kennedy's, even
if that means less strongly worded opinions, Kmiec said.
''So you now have the chief justice and Justice Stevens, two highly intelligent
but remarkably different judicial philosophies contending for the judicial soul
of Anthony Kennedy,'' Kmiec said. ''What's not clear to me yet is who the
ultimate victor is.''
Decisions in cases involving the disputed procedure known as partial-birth
abortion and public schools' use of racial criteria to assign students to
schools as a means of promoting racial diversity could help determine the
answer.
There is widespread agreement among conservative and liberal scholars that
Kennedy can be expected to be the fifth vote on both issues.
Moreover, his decision to join one side or the other probably will limit the
reach of the decision.
''There's no question that unless Kennedy changes his stripes in this new more
conservative court, he is not going to generally be willing to go as far as the
Roberts majority might like to in some very specific areas'' said Stephen
Wermiel, a law professor at American University.
David Garrow, the Cambridge University historian who has written widely on the
court, said Stevens' decision in the global warming case also showed how Kennedy
can keep the liberals in check.
''Stevens is choosing to say that which Kennedy agrees with,'' Garrow said.
''Stevens may be playing the music, but Kennedy is choosing the score.''
On the Net: Supreme Court:
http://www.supremecourtus.gov
|
