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

"As grievous as some of the rulings are," said Jan LaRue, chief counsel of Concerned Women for America, a conservative group that focuses on social issues, "they have the good effect of awakening more Americans to how important each vote on the court is."

There could be two vacancies to fill if Rehnquist, 80 and suffering from thyroid cancer, follows his old friend O'Connor into retirement.

Rehnquist seemed frail last Monday and struggled to speak clearly through a special valve in his throat where doctors performed surgery in October to help him breathe. He seemed in good spirits, however, cracking a joke about the lengthy list of dissenting and concurring opinions in one case.

Rehnquist was being a good sport at the end of a term in which his influence seemed to ebb along with his physical health.

Of the 24 cases decided by a vote of 5 to 4, the conservative coalition of Rehnquist, O'Connor, Kennedy, Antonin Scalia and Clarence Thomas held together in only five, according to statistics compiled by the law firm Goldstein & Howe.

In the previous two terms, the conservative majority had held together in almost half of the 5 to 4 cases, the firm said.

Capital punishment, property rights, state sovereignty and more latitude for official expressions of religious sentiment have all been pet causes of the chief justice in his 33 years on the court. He has helped moved the court to the right on each of these issues during the past decade -- but found himself mostly in dissent on them this term.

Kennedy was the difference-maker in the death penalty case, writing the opinion for a five-member majority that found the country had formed a "national consensus" against executing offenders who were younger than 18 at the time of their crimes.

This implicitly repudiated a position Kennedy had taken in 1989, when he joined the court in upholding the practice. As recently as 2003, he had voted to reinstate a juvenile's death sentence that had been put on hold by an appeals court.

This time, he buttressed his argument with references to other countries' opposition to the juvenile death penalty, drawing fire from conservatives who saw him importing foreign law into the interpretation of the Constitution -- as he had previously done in striking down the sodomy laws.

Notably, Kennedy could have reached the same result in the death penalty case without making such references. "To add that separate section is an example of Kennedy's really declaring his independence from the conservative orthodoxy of originalism," Supreme Court litigator Paul Smith said at the American Constitution Society forum.

On property rights, Kennedy supplied a fifth vote to a four-member liberal bloc to uphold local governments' right to buy out private property when deemed necessary to promote broader economic development.

The property rights activists who brought the case had expected Kennedy's support, based in part on his generally pro-property-rights record on the court.

And in the medical marijuana case, Kennedy joined Scalia in breaking with a recent string of cases in which they and the court's other conservatives had struck down federal laws on the grounds that they exceeded Congress's power to regulate interstate commerce.

But whereas Scalia supplied a separate opinion explaining how his positions then and now could be reconciled, Kennedy simply cast his vote without further comment.

Even when Rehnquist had a majority including Kennedy -- as he did in upholding a six-foot stone monument of the Ten Commandments on the Texas Capitol grounds -- it was a shallow victory.

The fifth vote in his coalition came not from someone who agreed with his long-standing view that the commandments are generally permissible on government property, but from Justice Stephen G. Breyer, who accepted the monument on the much narrower basis that it had not aroused much controversy during its four-decade stay in Austin.