The New Swing Vote
I recently took the position that Justice Souter had replaced retired Justice Sandra Day O'Connor as the pivotal swing vote on the US Supreme Court. Friends and other people whose opinion I respect have disagreed. They declare Justice Kennedy to be the new swing vote, the new center. If they are correct, and I admit they have compelling evidence, then the new center is considerably to the right of the old. Kennedy, appointed by President Reagan when Judge Bork was, well, borked, is a clear conservative on most issues, and has been thus far in his tenure.
Adam Cohen has a guest editorial in today's NY Times which suggests that Kennedy is in fact the new 'fifth vote.'
With Sandra Day O'Connor's retirement, there is a new swing justice in town. If the court's two newest members, Chief Justice John Roberts Jr. and Justice Samuel Alito Jr., turn out to be as conservative as expected, Justice Kennedy will be at the center of a deeply divided court. That means that until its membership changes again, he is likely often, although certainly not always, to have the final word on such deeply divisive issues as abortion, affirmative action and campaign finance.
If past votes are any indication, having Justice Kennedy at the center, instead of Justice O'Connor, will push the court to the right — on some issues, considerably so. But it is hard to know for sure. Justice Kennedy has always resisted easy categorization, and there are reasons to believe he will become even harder to pigeonhole in his new role.
...When the right cases reach the court, Justice Kennedy could provide the deciding vote to declare campaign finance restrictions of all kinds unconstitutional, to end affirmative action and to uphold greater limitations on abortion rights. He may well relish the chance to finally get his way on these issues. But there are also reasons to believe that, at least in some cases, he may not.
For one thing, there are signs that his views are evolving. Last year, he wrote the decision ending the juvenile death penalty, reversing his 1989 position. And he has become an increasingly strong advocate for taking international law into account, to the distress of many conservatives.
He is also someone who cares what other people think. The Supreme Court scuttlebutt has always been that he is open to persuasion by colleagues, and even law clerks. It is sometimes said condescendingly, but there is something refreshing about a justice who genuinely seems to have an open mind. When he switched sides on the juvenile death penalty, he wrote a thoughtful opinion noting both that the American people had turned against it and that "the overwhelming weight of international opinion" opposed it.
Given the fact that this Court will be hearing several abortion rights cases and several cases testing the limits of presidential powers, Justice Kennedy will indeed by a key vote. If, in fact, his recent opinions reflect an evolution of his thinking, then he will be comparable to another conservative appointed in the past whose opinions gradually moved to the center, and then slightly to the left: the late Chief Justice Earl Warren.
We should be so lucky.
Adam Cohen has a guest editorial in today's NY Times which suggests that Kennedy is in fact the new 'fifth vote.'
With Sandra Day O'Connor's retirement, there is a new swing justice in town. If the court's two newest members, Chief Justice John Roberts Jr. and Justice Samuel Alito Jr., turn out to be as conservative as expected, Justice Kennedy will be at the center of a deeply divided court. That means that until its membership changes again, he is likely often, although certainly not always, to have the final word on such deeply divisive issues as abortion, affirmative action and campaign finance.
If past votes are any indication, having Justice Kennedy at the center, instead of Justice O'Connor, will push the court to the right — on some issues, considerably so. But it is hard to know for sure. Justice Kennedy has always resisted easy categorization, and there are reasons to believe he will become even harder to pigeonhole in his new role.
...When the right cases reach the court, Justice Kennedy could provide the deciding vote to declare campaign finance restrictions of all kinds unconstitutional, to end affirmative action and to uphold greater limitations on abortion rights. He may well relish the chance to finally get his way on these issues. But there are also reasons to believe that, at least in some cases, he may not.
For one thing, there are signs that his views are evolving. Last year, he wrote the decision ending the juvenile death penalty, reversing his 1989 position. And he has become an increasingly strong advocate for taking international law into account, to the distress of many conservatives.
He is also someone who cares what other people think. The Supreme Court scuttlebutt has always been that he is open to persuasion by colleagues, and even law clerks. It is sometimes said condescendingly, but there is something refreshing about a justice who genuinely seems to have an open mind. When he switched sides on the juvenile death penalty, he wrote a thoughtful opinion noting both that the American people had turned against it and that "the overwhelming weight of international opinion" opposed it.
Given the fact that this Court will be hearing several abortion rights cases and several cases testing the limits of presidential powers, Justice Kennedy will indeed by a key vote. If, in fact, his recent opinions reflect an evolution of his thinking, then he will be comparable to another conservative appointed in the past whose opinions gradually moved to the center, and then slightly to the left: the late Chief Justice Earl Warren.
We should be so lucky.
posted by Diane at 4:40 AM
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