In Other News From the Middle, Some Shifts by Justice Kennedy

Justice Anthony Kennedy parted ways with the Rehnquist bloc on three big cases in the just-ended court term.
Justice Anthony Kennedy parted ways with the Rehnquist bloc on three big cases in the just-ended court term. (By Robert A. Reeder -- Associated Press)

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By Charles Lane
Washington Post Staff Writer
Monday, July 4, 2005

All eyes were on Justice Sandra Day O'Connor after the Supreme Court wrapped up its term this week.

But while O'Connor and her centrist legacy may have been at the center of attention because of her surprise retirement announcement Friday, the center of power during the term was one chair to her left, where Justice Anthony M. Kennedy -- the court's other center-right swing voter -- sits.

In three crucial cases this term, Kennedy, a 1988 appointee of President Ronald Reagan, defected from the five-member right-of-center bloc that Chief Justice William H. Rehnquist nominally leads.

Kennedy joined with the court's liberals to abolish the death penalty for juvenile offenders, to give local governments a green light to take private property for economic development and to endorse a broad theory of federal regulatory power that denied states the right to override a federal law against homegrown medical marijuana.

O'Connor actually found herself in dissent in most of the court's big cases last term, voting to uphold the juvenile death penalty, to strike down Texas's display of the Ten Commandments, to forbid takings of private property for economic development and to uphold California's right to pass a medical marijuana law.

And she expressed that dissent in what was, for her, an unusually uncompromising tone; she seemed uninterested in keeping her options open for future cases, as she often did in the past.

In the marijuana case, for example, she accused the majority of "threaten[ing] to sweep all of productive human activity into federal regulatory reach."

In hindsight, this may have been a clue to her plans to retire. Referring to the property rights case, Richard J. Lazarus, a professor of law at Georgetown University, noted that it was very uncharacteristic of O'Connor. "It didn't read like an O'Connor opinion," he said. "It made me think she was in a different frame of mind."

For Kennedy's part, not only did he desert the conservative camp on crucial issues, he did so in spite of his past votes and writings on the court, which suggested that he might have come out the other way each time.

"What's up with Justice Kennedy?" Boston University law professor Randy Barnett asked at a forum on the recently concluded term sponsored by the American Constitution Society last week. "He's clearly crossed some kind of a Rubicon. That's the big news of this term."

Kennedy's rulings further angered conservative activists who were already upset with him because of his authorship of the court's opinion last year abolishing state laws against same-sex sodomy.

In a generally disappointing term for the right, some conservatives said the only bright spot in the court's Kennedy-supported leftward movement was that it will help them rally their base to urge President Bush to put a committed conservative on the court.


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