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.
Positions attacked by both sides
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.
Roberts makes overtures
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.
Acting as an anchor
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.”