Supreme Court's new man in the middle

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.

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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