A New SCOTUS Swing Vote - Moderate Or Conservative?

Alan Dershowitz wrote an op-ed piece regarding SCOTUS and the ideological underpinnings of the Supremes. In the piece he made the argument that none of the justices could escape their ideological underpinnings. Now that the bench is stacked with conservatives--many of them ultra-conservatives--the swing vote comes from an unlikely source... the only moderate among the conservatives, Justice Kennedy. But how moderate is Kennedy? Not so that anyone would really notice, based upon his record on the bench. However, it would appear that his role as the swing vote is having an effect on him in that he now has the freedom to speak--and vote--his conscience without giving a damn who doesn't like it. With Rhenquist gone, and Roberts still adjusting to the role as Chief Justice, Kennedy is apparently living in the catbird seat. Let us hope he remains somewhat independent not that he has new found freedom.

Roberts Is at Court's Helm, but He Isn't Yet in Control

As the dust settled on a consequential Supreme Court term, the first in 11 years with a change in membership and the first in two decades with a new chief justice, one question that lingered was whether it was now the Roberts court, in fact as well as in name.

The answer: not yet.

Chief Justice John G. Roberts Jr. was clearly in charge, presiding over the court with grace, wit and meticulous preparation. But he was not in control.

In the court's most significant nonunanimous cases, Chief Justice Roberts was in dissent almost as often as he was in the majority. His goal of inspiring the court to speak softly and unanimously seemed a distant aspiration as important cases failed to produce majority opinions and members of the court, including occasionally the chief justice himself, gave voice to their frustration and pique with colleagues who did not see things their way.

The term's closing weeks were particularly ragged. The court issued no decision in a major patent case that had drawn intense interest from the business community, announcing two months after the argument, over the dissents of three justices, that the case had been "improvidently granted" — they should not have agreed to decide it — in the first place.

So if it wasn't yet the Roberts court, what exactly was it?

Perhaps it was the Kennedy court, based on the frequency with which Justice Anthony M. Kennedy cast the deciding vote in important cases.

Or perhaps it was more accurately seen as the Stevens court, reflecting the ability of John Paul Stevens, the senior associate justice in tenure as well as in age, to deliver a majority in the case for which the term will go down in history, the decision on military commissions that rejected the Bush administration's view of open-ended presidential authority.

Chief Justice Roberts did not participate in that case because he had ruled on it a year earlier as an appeals court judge. Based on his vote to uphold the administration's position then, he almost certainly would have joined Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., the newest member of the court, in dissent.

If none of these labels — Roberts court, Kennedy court, Stevens court — seem to fit precisely, it is probably because what the Supreme Court really was in its 2005-6 term was a court in transition.

For the justices, it was a time of testing, of battles joined and battles, for the moment, postponed.

The term's early period of unanimity, during which cases on such contentious subjects as abortion and federalism were dispatched quickly, with narrowly phrased opinions, reflected agreement not on the underlying legal principles but rather on the desirability of moving on without getting bogged down in a fruitless search for common ground. This was especially so in the term's early months, when Justice Sandra Day O'Connor was still sitting but was counting the days until a new justice could take her place.

Once Justice O'Connor retired in late January, after Justice Alito's confirmation, and as the court moved into the heart of the term, some of the court's early inhibitions seemed to fall away. Yet when its most conservative members reached out aggressively to test the boundaries of consensus in the term's major environmental case, Justice Kennedy unexpectedly pushed back and left them well short of their goal.

In that case, Chief Justice Roberts along with Justices Alito, Scalia and Thomas tried to cut back on federal regulators' expansive view of their authority under the Clean Water Act to define wetlands.

Justice Kennedy also deserted the conservatives in a redistricting case from Texas when he found a violation of the Voting Rights Act in the dismantling of a Congressional district that had previously had a Mexican-American majority. The action of the Republican-led Texas Legislature had deprived the Latinos of the ability to elect the candidate of their choice, Justice Kennedy said, leaving Chief Justice Roberts to complain in dissent, "It is a sordid business, this divvying us up by race."

Nonetheless, there was little doubt that in its transition, the court was becoming more conservative. A statistical analysis by Jason Harrow on the Scotusblog Web site showed that Justice Alito voted with the conservative justices 15 percent more often than Justice O'Connor had.

A separate analysis, by the Supreme Court Institute at Georgetown University Law Center, showed that Justice Alito and Chief Justice Roberts had the highest agreement rate of any two justices in the court's nonunanimous cases, 88 percent, slightly higher than the agreement rate between Justice O'Connor and Justice David H. Souter in the first half of the term, 87.5 percent.

Chief Justice Roberts agreed with Justice Scalia in 77.5 percent of the nonunanimous cases and with Justice Stevens, arguably the court's most liberal member, only 35 percent of the time. The least agreement between any pair of justices was between Justices Alito and Stevens, 23.1 percent.

The court decided 69 cases with signed opinions in the term that began on Oct. 3 and ended on June 29. Nearly half were decided without dissent, a greater number than usual, although not dramatically so. Sixteen cases were decided by five-justice majorities, either 5 to 4 or 5 to 3, a proportion very close to the 10-year average.

One measure of the court's shift to the right is in dissenting votes. In the previous term, the justice who dissented least often was Stephen G. Breyer, who dissented in 10 of the term's 74 decisions. But this term, he had the second-highest number of dissents, 16; Justice Stevens had the most, 19. Justice Thomas and Justices Ruth Bader Ginsburg and Souter were also frequent dissenters. Of those who served the full term, Chief Justice Roberts had the fewest dissents, seven. Justice Kennedy had the second fewest, with nine.

Chief Justice Roberts's dissents, while few, came in some important cases. In addition to dissenting from the Voting Rights Act portion of the Texas redistricting decision, he also dissented from a decision reopening a 20-year-old death penalty case on the basis of new evidence; a federalism case, in which the majority found the states not immune from private bankruptcy suits; and a ruling that invalidated the personal assertion of authority by John Ashcroft, the former attorney general, to penalize doctors in Oregon who follow that state's Death With Dignity Act and prescribe lethal doses of medication for terminally ill patients who request it.

The court's next term, which begins Oct. 2, looms as a major test of the justices' fortitude and ability to work together, with cases challenging precedents on abortion and affirmative action already on the docket.

With the court having indicated in Hamdan v. Rumsfeld, the military commission case, that lawsuits now pending in the lower courts on behalf of dozens of detainees at Guantánamo Bay, Cuba, are still alive, the justices are likely to have further opportunities to address the profound issues of presidential power and judicial authority that these cases raise. This time, the chief justice will not need to stay silent, and the country that is just getting to know him will hear his voice.

Kennedy Reigns Supreme on Court With O'Connor's Departure, Sole Swing Voter Wields His Moderating Force

It was the O'Connor court. Now it may be the Kennedy court.

The Supreme Court's just-concluded 2005-2006 term was a historic one, in which two new justices, Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr., changed the court's style and ideological balance.

But by the end of the term, it was clear that the main impact of the turnover was to enhance the influence of a justice who has been at the court since 1988, 69-year-old Anthony M. Kennedy.

With the departure of centrist Justice Sandra Day O'Connor, the court is now frequently split between two four-justice liberal and conservative blocs, with Kennedy as the sole remaining swing voter.

An eclectic and sometimes inscrutable moderate conservative, Kennedy repeatedly cast the decisive vote on the most polarizing issues the court faced, from President Bush's military commissions, to the Clean Water Act, to the death penalty. He is poised to do so again next term when the court takes up the issues of abortion and school integration.

"Justice Kennedy seems to be asserting himself more and seems to be relishing the role," said Richard Lazarus, a law professor at Georgetown University who heads the school's Supreme Court Institute. "All the justices enjoy being more significant rather than less significant, and he has certainly asserted his role as a moderating force on both sides."

In the 17 cases during the 2005-2006 term that were decided by five-vote majorities, Kennedy was on the winning side 12 times, more than any other justice, according to figures compiled by the Supreme Court Institute.

In six of those cases, Kennedy voted with the conservative bloc, made up of Roberts, Alito, Antonin Scalia and Clarence Thomas. As a result, the court upheld most of Texas's Republican-drafted redistricting plan, restored the death penalty in Kansas, and ruled that police do not have to throw out evidence they gather in illegal no-knock searches.

But four times, Kennedy, a 1988 appointee of President Ronald Reagan, defected to the liberal justices, John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

As a result, the court not only struck down Bush's military commissions, but also ruled that the police need permission from both occupants to search a home without a warrant, gave a Tennessee death row inmate a chance to win a new trial, and said that Texas violated the Voting Rights Act by diluting the voting power of Latino Democrats in one district. (Twice Kennedy was part of mixed left-right coalitions.)

Roberts voted in 10 five-justice majorities, the second-most on the court, but he joined the four liberals only once, in a minor procedural case.

The "swing voter" role is not entirely new to Kennedy, who has been in that position before, along with O'Connor.

Indeed, Kennedy is disliked by many conservatives because he has voted with liberals to uphold gay rights and abortion rights, and to strike down the juvenile death penalty.

But since O'Connor retired from the court Jan. 31, and Alito, who replaced her, has lived up to his conservative billing, Kennedy has been all alone as the swing voter -- with the added clout, and added pressure, that implies.

O'Connor used to tell audiences that, at the court, "we decide what cases to hear, and then we decide 'em." Though she often ruled only narrowly, she did not agonize.

Kennedy, by contrast, has been known to brood or to switch his vote in the middle of a case -- though he is more inclined than O'Connor was to rule broadly once he comes to a conclusion. He is a passionate free-speech advocate, and has a consistent record of opposing affirmative action.

While O'Connor saw herself as a fact-oriented problem-solver, Lazarus says, Kennedy "views himself as a major intellectual force."

More than some other justices, "Kennedy sees real values in conflict in the court's cases, and it's a question how you negotiate it," said Neil Siegel, who served as a Supreme Court law clerk in the 2003-2004 term and now teaches at Duke University's law school. "Sometimes he does it well and skillfully, and sometimes he just can't make up his mind and the legal system gets stuck in a kind of vertigo."

In the military commission case, Kennedy ruled unequivocally, joining almost all of Stevens's broad opinion. His few reservations came in a concurring opinion that also contained Kennedy's admonition that "concentration of power puts personal liberty in peril of arbitrary action by officials."

But at other times this term, Kennedy cut difficult issues very fine, drawing criticism from his colleagues.

In a key case on the scope of the Clean Water Act, Kennedy refused to join either the conservatives, who voted as a bloc to scale back federal power to regulate wetlands, or the liberals, who wanted to leave it intact.

Kennedy instead wrote a long opinion of his own. He agreed with the conservatives that a lower court had mistakenly allowed the federal government to block development on two Michigan properties, but disagreed with them about why. He said the lower court should reconsider the issue under a new legal test -- one that most analysts thought would end up producing the same result the liberals wanted anyway.

Kennedy's opinion would not change wetlands protection in the long run, Stevens wrote in a dissenting opinion joined by the three other liberals, but "will have the effect of creating additional work for all concerned parties."

Scalia, joined by the three conservatives, called Kennedy's proposal "perfectly opaque."

"He is a man in the middle, and the man in the middle is fully capable of causing muddle," said Douglas A. Kmiec, a Pepperdine University law professor.

The pressure on Kennedy could mount next term, when the court will rule on the constitutionality of a federal law banning the procedure opponents call "partial birth" abortion, and will decide whether local governments may consider students' race when assigning them to public schools.

Though Kennedy is on record in favor of Roe v. Wade , the 1973 decision that recognized a right to abortion, he dissented angrily from a 5 to 4 ruling in 2000 that struck down a state law banning partial-birth abortion.

That would seem to commit him to upholding the federal ban, legal analysts said, except that the 2000 case is binding precedent and Kennedy may "be acutely aware of a mere personnel change on the court causing a radical shift," Siegel said.

Kennedy has always voted against affirmative action, most recently in 2003 when he voted against race-conscious admissions policies at the University of Michigan's law school and undergraduate program.

But the cases the court has agreed to hear next term involve compulsory public education for students as young as kindergarten age. They also present the problem of how public schools can avoid resegregation, at a time when residential segregation persists and court-ordered school desegregation is largely a thing of the past.

Under the circumstances, legal analysts do not all agree that Kennedy necessarily relishes his situation.

"I'm not certain it's an enviable position to be in," Siegel said. "It's quite a burden to bear."