Swing Time: Anthony Kennedy is the new Sandra Day O'Connor.

Slate ^ | 01/18/2006 | Dahlia Lithwick

[SirLinksalot]

Anthony Kennedy—the new Sandra Day O'Connor.

Lost in last week's cacophony about the critical role of Sandra Day O'Connor as sole and exclusive swing voter on the U.S. Supreme Court was any sign of respect for the other sole and exclusive swing voter on the U.S. Supreme Court: Anthony M. Kennedy. Kennedy's majority opinion in today's big physician-assisted-suicide case serves as the perfect reminder of who's going to call the shots in the near future.

The 6-3 opinion in Gonzales v. Oregon—a decision upholding Oregon's physician-assisted-suicide law from attack by the Attorney General's Office—sharply outlines the court's Anthony Kennedy-shaped future. The dissenters are Antonin Scalia, Clarence Thomas, and—not surprisingly—Chief Justice John Roberts. In the majority you'll find the court's usual moderate-to-liberal lineup: John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer. The other two votes for Oregon thus come from the "swingers": O'Connor, who will (barring some stunning revelation that he dances for money in women's lingerie) soon be replaced by Samuel Alito, and Kennedy. In other words, this opinion was Kennedy's latest big chance to swing for the bleachers, and swing he does.

While it's true that O'Connor has tended to vote with the majority more frequently than Kennedy, and that she has done so in some big 5-4 decisions, it's also true that in other extremely contentious areas, it is Kennedy, not O'Connor, who has swung the court leftward. It was Kennedy who weighed in with the broad rationale of the court's liberals on a key gay-rights case; Kennedy who voted with the court's liberals to strike down the death penalty for juveniles and the mentally disabled; and Kennedy who has joined with O'Connor (and David Souter) to reaffirm the basic right of a woman to have an abortion.

[Airborne1986]

"I hate Kennedy"

If not for Kennedy standing tall in Gore v. Bush, the Florida Supreme Court would have allowed the Democrat counties in Florida to keep counting and counting until Gore "won". Imagine where we would be now if that had happened.

[saveliberty]

I don't think this article is right. Prior to the nominations the CW was saying that by nominating an ultraconservative (which clearly Slate thinks Alito is) that will drive Kennedy to the left.

Except that Kennedy has already been voting on the left on life decision and property swiping votes, and the evidence is early but it's looking as though the precision of questioning by CJ John Roberts is having an effect on Kennedy outside those two issues.

Kennedy flips for two reasons. One, he's not a strong jurist. And two, he did not come from DC and was not prepared for the rough treatment of conservatives even after sitting on the bench.

DC is a liberal town. There are a lot of benefits for voting the wrong way.

But I think that Slate would be excreting bricks if they figured out that Roberts may have such powerful questions as to drive Kennedy away from the left, even on the wrong issues he's voted in the past (and present).

I think Alito will be a good influence too. Then he won't be joining O'Connor but will be fighting Roberts, Scalia, Alito and Thomas, and that is a whole other story.

[RockinRight]

She's not all that great (healthwise) herself. Look for either Ginsburg or Stevens to announce retirement (or God to "retire" them) in the next 6 months.

[johnmecainrino]

Kennedy has moved farther left in recent years.

From his international law on the death penalty for minors to souter and breyer convincing him to take the texas redistricting case.

[Navy Patriot]

until we replace either Ginsburg or Stevens

Yep, we still need one more for a fair hearing on any matter.

I would like to see Ruth "Buzzi" G go, as she is the most incompetent on the Court.

[SirLinksalot]

<<<<
Kennedy flips for two reasons. One, he's not a strong jurist.
>>>>

Was it Justice Kennedy who was the one who cited INTERNATIONAL LAW as a valid precedent that can be used by our courts ?

[saveliberty]

I know Breyer did. I don't think that Kennedy did.

[Always Right]

On the plus side, by age

Roberts -50 Conservative
Alito - 55 Conservative
Thomas - 57 Conservative
Souter - 66-6 Liberal
Bryer - 68 Liberal
Scalia - 69 Conservative
Kennedy - 69 Swing
Ginsburg - 72 Liberal
Stevens - 85 Liberal

Conservatives range from 50 to 69 with an average of 58, while Liberals range from 66 to 85 with an average age of 73. Conservatives are 15 years yonger than the liberals.

[napscoordinator]

Why is their talk of impeachment when the other court members voted with him. DeLay should just leave for the good of the country. I can't believe how foolish he can be. He was good when he was good, but he is bad when he is bad...

[Clump]

This is true. But our position is undoubtedly much stronger with Kennedy as the sole swing vote. With SDO, we had to get both swing voters to have a majority. It seemed that we would often lose one of them along the way, and end up on the losing side of some big 5-4 decisions. Let's look at some of theses key 5-4 cases, and where we would have come out had SDO or Kennedy ruled differently.

Since SDO is on her way out, let's start with where we may be headed without her. She has let us down;

1.Stenberg v. Carhart (2000)- SDO joined the liberal block in striking down Nebraska's ban on partial birth abortion.

2. In the affirmative action case out of Michigan she joined the liberals in upholding the use of race as a factor in college admissions.

3. SDO joined the liberals in upholding key parts of McCain-Feingold.

4. SDO has often provided the key in Establishment Clause cases. She has tamed down (slightly) the rabid hostility towards Christians from the left on the court, but she has been way off the mark. She has been a sure vote to remove "religious" displays.

Kennedy has been on the right side of those cases. I anticipate that we will see those precedents chipped away at over the next few years. But here is where our concern lies with Kennedy.

1. He joined the liberals in Kelo this last year (eminent domain case).

2. He looks like a sure vote on the gay issues that come before the court. This is based on Lawrence a couple of years back.

3. He left the reservation on the juvenile death penalty case a couple of years ago.

4. He has expresses a willingness to uphold restrictions on abortion, but has not been willing to overrule Roe. We will see how he handles his fellow Catholics when this comes up again. Also, I happen to think he could be persuaded here. He was sure pissed when the partial birth abortion ban was struck down(see his dissent in Carhart), and the majority used his majority opinion in Planned Parenthood as its basis. Scalia (in his own dissent) used the case as an opportunity to show why Planned Parenthood (and by extension Roe

[napscoordinator]

I don't know why we are getting our hopes up for this to happen. Look at Strom Thurmon. He lived until 100. We may have 15 years of Stevens to go. I don't count the chickens until they hatch that way you are never disappointed.

[kellynla]

I don't know about Ginsburg.
she has never looked "well" to me. LOL

[hosepipe]

[ "He may take a dirt nap soon enough." What about the dread Ginsburg? I heard she is not well. ]

If Roberts was SMART he would WORK them both to death..
By increaseing the SCOTUS workload..

[Wolfstar]

I figure 1 swing vote is better than the 2 we had.

If the Roberts court does prove to be 4-4 with one swing vote, it will be the most balanced court at least since the Eisenhower years, maybe longer. So it would definitely be an improvement.

However, there are a great many decisions the court makes which are not about the conservative vs. liberal ideological divide so much as they are about the role of the Federal government. I hope over time to be pleasantly surprised, but for now I don't see the new court rolling back Federal power. For example, I suspect the 2005 (or was it late 2004?) eminent domain case would have been decided the same way by the new court as was with the old.

[Airborne1986]

"From his international law on the death penalty for minors to souter and breyer convincing him to take the texas redistricting case."

I can't dispute those points. The idea of citing international law makes me vomit into my mouth.

[Soul Seeker]

After spending years claiming O'Connor was the swing vote standing between Liberals and tyranny, they now discover Kennedy.

Is it any wonder why they don't deserve attention

Most conservatives have been stating we need two more, that Alito is only the fourth. Liberals get hysterical for no reason.

[Soul Seeker]

Yeah, and many conservatives feel the beating he took from the D.C. Liberal social circuit for the 2000 case is why kennedy has gone further Left in the last few years.

[Tim n Texas]

Question: I'm not too familiar with the internal dynamics of the court.....what influence will Robert/Alito have over Kennedy. Could a stronger conservative block impart a greater influence on Justice Kennedy?

[thoughtomator]

Stevens and Ginsburg will die in office. Tyrants and Communists do not give up power voluntarily under any circumstances, and they are both.

[penowa]

He may take a dirt nap soon enough.

A dirt nap is the only way Bush will get to replace him I suspect.