The Fragile Kennedy Court

NY Times
The Fragile Kennedy Court

The Supreme Court has nominally been the Roberts Court since last fall, when John Roberts arrived as chief justice. But as a practical matter, the recently completed term marked the start of the Kennedy Court. With the departure of Sandra Day O'Connor, Justice Anthony Kennedy cast the deciding vote in case after case. The court's major rulings, on presidential power, environmental law and other issues, reflected his moderately conservative, but often fiercely independent, view of the law.

The two new justices, Chief Justice Roberts and Justice Samuel Alito, produced little of the term's excitement since both men quickly fell into predictably conservative voting patterns. Justice Alito voted with Clarence Thomas 84 percent of the time in non-unanimous decisions, and with John Paul Stevens, a leader of the court's liberal wing, just 13 percent. Chief Justice Roberts agreed with Antonin Scalia fully 88 percent of the time, and least often with Justice Stevens.

With Chief Justice Roberts and Justices Alito, Scalia and Thomas forming one bloc, and the four most liberal justices forming another, Justice Kennedy had the power to make either camp's opinion the majority on a striking number of cases.

His influence was clear in the most important case of the term, the historic ruling striking down the military tribunals at the Guantánamo Bay detention camp. Justice Kennedy provided the critical fifth vote for Justice Stevens's impassioned opinion that found fault not only with the tribunals but with the Bush administration's broader claims that the president has inherent power to execute the war on terror as he sees fit.

At other times, Justice Kennedy swung to the right. In the Texas redistricting case, he joined with the court's conservatives to reject the claim that Republicans' redrawing of the state's Congressional districts was so nakedly partisan that it violated the Constitution's equal protection clause. He did, however, join the liberals in holding that one of the newly created districts violated the Voting Rights Act.

In a key environmental case, Justice Kennedy came down between the conservatives, who would have substantially gutted the Clean Water Act's wetlands protections, and the liberals, who would have applied it forcefully. He laid out a middle-of-the-road test that will, in the end, most likely end up being fairly protective of the environment.

There were cases, of course, that Justice Kennedy did not decide. In an important campaign finance case, the court struck down a Vermont law but made clear that, as a general matter, contribution limits were constitutional. Justice Kennedy wrote his own opinion that expressed his continuing concerns about contribution limits, while Chief Justice Roberts gave critical support to the majority favoring campaign finance reform. In many other areas, though, including police searches and the death penalty, the law was what Justice Kennedy said it was.

The court's current centrism is fragile. Justice Stevens recently turned 86, and he or another justice could leave in the next two years, giving President Bush an opportunity to fill the vacancy. If the court's strongly conservative bloc gained a fifth vote, American law would likely look very different from the court's decisions this term and from its rulings over the last 50 years on issues like abortion, the environment and civil rights.