The Kennedy Court?
One man with caprice makes a majority.
Saturday, October 7, 2006 12:01 a.m. EDT
The Roberts Court started its second term this week, but to read the coverage you might think that the nine-member Supreme Court has been reduced to Justice Anthony Kennedy's single vote.
Of course, Samuel Alito and Chief Justice John Roberts are the new members, and it remains to be seen how they'll vote on some of the hot-button issues the court will hear this term. But in replacing Sandra Day O'Connor and William Rehnquist on the court, Messrs. Roberts and Alito have thrust Justice Kennedy onto center-stage, as he now stands squarely between the four liberal and four conservative Justices on a number of issues. We had a foretaste of this last term, with Justice Kennedy playing kingmaker in Hamdan v. Rumsfeld and Rapanos v. U.S. In both cases, the vote was effectively 4-1-4, with Justice Kennedy controlling the outcome and muddying the jurisprudence.
Hamdan dealt with the design of military commissions for trying detainees in the war on terror. Justice Kennedy mostly sided with the liberal minority in the case, turning the liberal bloc into a Kennedian majority and forcing Congress to write a set of rules by which some detainees may soon, finally, be tried. In Rapanos, an environmental-regulation case, Justice Kennedy more or less sided with the conservatives on the Court, but on idiosyncratic grounds that caused the Chief Justice to lament the resulting muddle.
It's unlikely we've seen the last one-man majority from Justice Kennedy. This possibility is not lost on the political left, which explains the current publicity given to Justice Kennedy's role. The hope seems to be that Justice Kennedy can be conditioned with carrots and sticks to make him the next Blackmun or Souter--earning praise for his "moderation" if he votes with the liberal wing, but earning obloquy if he tacks right.
Thus, we can expect a good deal of hand-wringing about whether Justice Kennedy will take an "activist" view in the partial-birth abortion case docketed for November. Here the Court will weigh the constitutionality of the 2003 Partial-Birth Abortion Act. In 2000, the Court struck down a Nebraska law banning partial-birth abortions by a 5-4 vote. Justice Kennedy vigorously dissented from that decision, writing that the majority had misinterpreted Planned Parenthood v. Casey, the 1992 decision that Justice Kennedy helped write. This would seem to offer Justice Kennedy a clear rationale for upholding the federal ban on partial-birth abortions, which may be why pundits are already wondering aloud whether Justice Kennedy will adhere to his "strong respect for stare decisis."
In December the court will hear two consolidated race-related cases; both deal with the use of race in assigning public-school students to classrooms. In the 2003 University of Michigan affirmative-action cases, Sandra Day O'Connor cast the deciding votes. The Court upheld the Michigan law school's racial-preference program. Justice Kennedy dissented from that decision, but did so on the grounds that the decision didn't give judges adequate authority to review racial-preference programs in the future. Given this judicial-supremacist line of reasoning, it is difficult to know how Justice Kennedy will approach the racial-preference cases the Court will hear this term.
What is clear is that Justice Kennedy enjoys being in the position of he who decides. It seems this term will offer him ample scope to play Solomon. The problem with this "swing-vote" theory is that it trivializes the Court into a results-based political body when there are real judicial disputes to settle. The Court would be best helped if Justice Kennedy pointed it toward clarity rather than judicial confusion.
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