Justice Anthony Kennedy Has Cast Deciding Votes in High Court's 6 5-4 Decisions This Term

[Omaha Steve]

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Justice Anthony Kennedy Has Cast Deciding Votes in High Court's 6 5-4 Decisions This Term

04-07-2007 9:32 PM
By MARK SHERMAN, Associated Press Writer

WASHINGTON (Associated Press) -- 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.


Supreme Court Justice Anthony Kennedy testifies before a Senate Judiciary Committee hearing on Capitol Hill in Washington in this Feb. 14, 2007, file photo. Decisions in two recent cases demonstrated the pivotal role that Justice Anthony Kennedy plays in shaping just about any matter of consequence at the Supreme Court. His vote probably will decide key cases on abortion and school integration as well. (AP Photo/Dennis Cook, File)



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.

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.

FULL story at link.

[PDittie]

1. Kicking and recommending

Kennedy is the linchpin for whether or not we halt the march toward fascism. He's a troubling and unpredictable pivot point, but there it is.