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Supreme Court's new man in the middle

The most significant development of the high court's 2005-2006 term, which ended last week, is the emergence of Justice Kennedy as the sole swing vote at the moderate center of the court.

By / July 3, 2006



WASHINGTON

The US Supreme Court has grow nmore conservative with the addition of President Bush's two nominees, Chief Justice John Roberts and Justice Samuel Alito. But it will be a third justice, Anthony Kennedy, who will likely decide how far to the right the law moves under the new lineup of justices at the nation's highest court.

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"Kennedy now holds the center of gravity on the court," says Jonathan Turley, a constitutional law professor at George Washington University. Prior to her retirement in January, Justice Sandra Day O'Connor was frequently called the most powerful woman in the country. As a centrist on the nine-member Supreme Court, she often cast the fifth and deciding vote in some of the nation's most contentious and important cases.

In years past, Kennedy shared the swing-vote designation with O'Connor. But with her departure he occupies the court's decisive center alone. That puts Kennedy in an even more powerful position than O'Connor, legal analysts say.

"He who casts the decisive vote is going to be the person with all the power," says Michael Dorf, a constitutional law professor at Columbia University Law School in New York.

Tom Goldstein, a Washington lawyer who has argued 16 cases at the Supreme Court, described Kennedy's emergence at a recent gathering of the American Constitution Society. "The basic principle you should understand is it is Justice Kennedy's world and you just live in it."

Kennedy's power was on full display last week when he joined the court's liberal wing to forcefully strike down President Bush's plan to put terror suspects on trial before military commissions at Guantánamo Bay, Cuba.

In other actions during the term, he cast the decisive vote in a case that makes it easier for convicted criminals to get another chance to present claims of innocence to a judge. He sided with the court's liberals in rebuking former Attorney General John Ashcroft for attempting to use his rule-making power to invalidate Oregon's physician-assisted suicide law. And he provided the decisive fifth vote to invalidate a congressional district in Texas drawn to protect an incumbent Republican.

On the conservative side, Kennedy provided the key fifth vote to uphold a Kansas death penalty statute that allowed the imposition of a death sentence even when jurors found that aggravating and mitigating factors concerning the crime and the defendant were evenly balanced. He voted with the conservatives to limit the scope of federal authority to protect the nation's water resources under the Clean Water Act. And he provided the decisive vote to eliminate application of the exclusionary rule to evidence obtained by police who fail to knock and announce their presence before bursting into a private home with a search warrant.

Kennedy more reliable for the right

While such results demonstrate Kennedy's power to break deadlocks, they understate his role at the high court, legal analysts say.

Compared with O'Connor, Kennedy is a much more reliable vote for the conservative wing, analysts say. But they add that when he swings to the liberal side, he really swings.

One example was Kennedy's landmark opinion in a 2003 gay rights case called Lawrence v. Texas. The same characteristic came to the fore last Thursday in the Guantánamo military-commission case.

"He is not by nature a balancer, so when he comes out on the liberal side he is going to come out forcefully that way," says Professor Dorf, who clerked for Justice Kennedy in the 1991-92 term. "It is also because he has more of a libertarian streak than O'Connor," Dorf says.

Although Kennedy is clearly the swing justice now, he would hate being described as such, Dorf says. Kennedy does not position himself to wield a tie-breaker. "It is more that his substantive views end up placing him precisely in the middle of this court," Dorf says.

Professor Turley agrees. Kennedy, he says, is more likely than was O'Connor to try to maintain a consistent and coherent line in the law while breaking 4-to-4 ties.

But such consistency also comes at a price. When the high court deadlocked 4-to-4 this term over how to interpret the Clean Water Act, Kennedy sided with the conservatives enough to send the case back to the lower courts. But in a concurring opinion, he also expressed agreement with aspects of the liberal view of the case, staking out and defining a middle ground occupied by Kennedy alone.

The result is that very little was decided, and lower courts will be left to struggle through that indecision. In addition, environmentalists are worried about the scope of federal protection of remote wetlands, and developers are facing increasingly expensive delays and uncertainty.

A check on the conservative wing

Others see in Kennedy's middle way a useful check on the conservative proclivities of the newly reconstituted high court. In his majority opinion in the police knock-and-announce case, Justice Antonin Scalia appears to be laying the foundation for a broader assault on the exclusionary rule, which prevents illegally gathered evidence from being presented in court.

In response, Kennedy, who provided the key fifth vote in that case, wrote in a concurring opinion that "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt."

The sentence sent a clear signal to conservatives hoping to do away with the exclusionary rule, and to liberals hoping to protect it.

While the 2005 term was a time of transition at the high court, the stage is now set for what could become a blockbuster term next fall. The docket already includes cases dealing with global warming, punitive damage limits, affirmative action in public schools, and a federal ban on so-called partial-birth abortions.

In the affirmative action and abortion cases, analysts expect the court to split 4-to-4. The result: all eyes will be on Kennedy.

"Those briefs could just be mailed directly to his chambers," Turley says.

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