- The Washington Times - Saturday, April 7, 2007


Justice Anthony M. 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. Justice 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.

In a victory for environmentalists in the first Supreme Court case on global warming, Justice 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 Justice Kennedy’s vote and, thus, a majority.

“When you have a 5-4 majority, it’s a majority you can lose,” Pepperdine University law professor Douglas Kmiec said.

Like Lewis Powell and Sandra Day O’Connor before him, Justice Kennedy has become the court’s “swing justice,” a term he dislikes because he says it implies vacillation.

Yet the limited evidence so far this term shows how well the phrase fits.

Justice 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, his 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 U.S. Naval Base Guantanamo Bay, 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. Justice Stevens, leader of the court’s liberal bloc, “was worried that Kennedy wouldn’t be the fifth vote at this point in time,” Duke University law professor Erwin Chemerinsky said. “He thought the best chance of getting Justice Kennedy’s vote was to wait until Justice Kennedy was ready to hear the cases.”

The two justices issued a joint statement saying it was premature for the Supreme Court to hear the cases now.

In his 19 years on the court, Justice Kennedy has been criticized for deciding cases without an overarching judicial philosophy.

He has infuriated conservatives with decisions in favor of homosexual rights, abortion rights and against school prayer. His votes against affirmative action and in criminal matters have left liberals cold.

Justice Kennedy has rejected the criticism, saying he has a well-grounded centrist approach to issues.

The liberal justices’ pursuit of Justice Kennedy has been made harder by the arrival of Chief Justice John G. Roberts Jr. as the leader of the court’s conservatives, Mr. Kmiec said.

Chief Justice Roberts appears more interested than his predecessor, the late William H. Rehnquist, in seeking to attract colleagues’ support, especially Justice Kennedy’s, even if that means less-strongly worded opinions, Mr. Kmiec said.

“So you now have the chief justice and Justice Stevens, two highly intelligent but remarkably different judicial philosophies contending for the judicial soul of Anthony Kennedy,” he said. “What’s not clear to me yet is who the ultimate victor is.”

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