Justice Kennedy casts decisive vote

By Tom Ramstack | Friday, June 27, 2008

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Once again, Justice Anthony M. Kennedy provided the "swing vote" in a tight contest among Supreme Court justices - this time deciding against the District's gun ban.

Thursday's 5-4 ruling pitted the court's conservatives who said the ban was unconstitutional against liberals who called it a reasonable restriction for public safety. Justice Kennedy sided with the conservatives, resulting in a decision that will let more individuals own handguns for home protection.

One day earlier, his vote supported the liberal position in a 5-4 decision saying the death penalty could be imposed only when a criminal defendant kills another person but not for the rape of a child.

"The constitutional provision against excessive or cruel and unusual punishments mandates that punishment be exercised within the limits of civilized standards," said the opinion Wednesday written by Justice Kennedy, which overrides a Louisiana law allowing the death penalty for child rape.

He also sided with the liberals in the 5-4 opinion on June 12 that gives terrorist suspects held at the Guantanamo Bay, Cuba, military prison the right to court hearings, contrary to the stance of the Bush administration.

Some legal scholars refer to Justice Kennedy as a libertarian, whose decisions are guided by a desire to maximize individual liberties while minimizing the role of government. His most frequent critics are political conservatives who see him as unpredictable.

Conservatives "seem to be upset with him for straying from the fold," said Jonathan Siegel, a George Washington University law professor and former Justice Department lawyer.

A consistently liberal Supreme Court justice like David H. Souter would not take the same kind of criticism from conservatives, he said. "Somehow they seem to see him as a lost cause," Mr. Siegel said.

Justice Kennedy's swing votes have given him a powerful voice on the Supreme Court. While the other jurists stick with consistent conservative or liberal positions, Justice Kennedy is most likely to break the deadlock.

"It remains true that so long as you have four pretty conservative justices and four more liberal justices, he's going to be casting more deciding votes," Mr. Siegel said.

Justice Kennedy, 71, was appointed to the Supreme Court by President Reagan in 1988 after working as a private lawyer, a federal judge and a law school professor. When he was appointed, he was living in the Sacramento, Calif., house where he was raised as a child.

He taught constitutional law at the University of the Pacific's McGeorge School of Law from 1965 to 1988. He continues to teach legal seminars at the school.

On religious issues, Justice Kennedy - a Catholic - tends to be slightly conservative, favoring a "coercion test" that he explained in the case of County of Allegheny v. ACLU. A Christmas madonna and child display could be allowed on courthouse steps as long as no one "coerced" other people to accept their religious beliefs, he said.

However, his expansive support for 14th Amendment due process rights has led him to support a constitutional right to abortion. He also voted to overturn a federal law forbidding "virtual" child pornography on the Internet, saying the law violated the First Amendment protection of free speech.

At the same time, he prefers a "tough on crime" policy that gives police wide discretion to search for illegal drugs.

One of Justice Kennedy's most controversial contributions is his tendency to quote European law in arriving at his court decisions. For example, in Lawrence v. Texas, Justice Kennedy wrote the 6-3 majority opinion that said consensual gay sodomy could not be criminalized, in part citing a 1981 European Court of Human Rights decision that he said was "authoritative in all countries that are members of the Council of Europe."

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