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The Kennedy Center
The Supreme Court's Balance Is Precarious

By Ruth Marcus
Wednesday, July 5, 2006

Justice Anthony M. Kennedy was the undisputed and understandable center of attention at the Supreme Court last week. As the 2005 term drew to a climactic close, with Kennedy providing the decisive vote against the Bush administration's military tribunals, the focus was on Kennedy's emergence as the new Sandra Day O'Connor: commanding the power to control a closely divided court.

This analysis is no doubt correct. But it misses the bigger point: This is a court on the brink. Kennedy plays a pivotal role, but his star turn is likely to be brief. And a court with Kennedy at the center is not a securely centrist court.

The interesting -- and unsettling -- aspect of this term is not how Kennedy voted but what it could have looked like just one liberal retirement away. It's not simply that four justices appear to have a far-reaching view of presidential power (Chief Justice John G. Roberts Jr. didn't participate in the military tribunals case at the high court, but as an appellate judge he had voted to uphold the administration's position).

Four justices voted to limit the reach of the federal Clean Water Act -- a troubling stance tempered only by Kennedy's less far-reaching concurrence.

Five, including Kennedy, signed on to an opinion that questioned the very basis of the exclusionary rule to suppress evidence illegally seized by police. Again, this was softened by Kennedy's concurrence, which asserted that "continued operation of the exclusionary rule . . . is not in doubt."

Three justices would have let the Bush administration block Oregon's assisted-suicide law -- and Justice Samuel A. Alito Jr., who arrived too late to participate, could well have made a fourth.

This is a court that could be a single vote away -- if that -- from crippling affirmative action; curtailing, if not abolishing, abortion rights; dramatically lowering the wall of separation between church and state; and limiting congressional authority under the Constitution's commerce clause to protect the environment and enact other laws of national sweep.

President Bush or his Republican successor, if there is one, could soon have the chance to cement the impregnable court majority that has long eluded conservatives. By contrast, the election of a Democratic president in 2008 would probably merely halt the court's steady drift rightward. Unless the vacancy comes from an unexpected quarter, the best a Democratic president could hope for is maintaining the current conservative tilt -- and even that could be optimistic.

This is a simple function of age. The justices who are oldest and therefore most likely to leave are also the most liberal: John Paul Stevens, 86, and Ruth Bader Ginsburg, 73. (Stephen G. Breyer is 67, David H. Souter, 65.) If the Senate does not change hands (and maybe even if it does) a Democratic president's chances of getting a justice as liberal as Stevens confirmed are slim -- especially in an age when the filibuster is considered a legitimate weapon in the judicial wars.

By contrast, it's far less likely that the next president -- or even two -- will have a vacancy left by a conservative justice to fill. Of the four reliable conservatives -- leaving aside the 69-year-old Kennedy -- the oldest is Antonin Scalia, 70. The other three (the new chief justice and Justices Clarence Thomas and Samuel Alito) are in their fifties.

If the status quo is the probable best-case scenario for Democrats, it's not a particularly liberal one. This is a far more conservative court than the one Kennedy joined in 1987. Outflanking Stevens on the left in 1987 were Justices William J. Brennan Jr., Thurgood Marshall and Harry A. Blackmun -- a far more liberal crowd than the current axis of supposed liberalism: Stevens-Souter-Ginsburg-Breyer.

Today's liberals are less the flaming type than those of 1987, but today's conservatives are far more conservative. Back then the court's conservative wing was considered to be, in addition to Scalia, Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Byron R. White. Thomas is far to the right of any of those three. And if the two newest justices (Roberts and Alito) turn out to be only as conservative as Rehnquist, it will be a pleasant surprise for many on the left.

Kennedy is now at the fulcrum of this more conservative court, but he tips conservative more often than not. In non-unanimous cases last term analyzed by the Supreme Court Institute, he voted most often with Alito (73.1 percent) and Roberts (67.5 percent) and least often with Stevens (41.9 percent.)

There is, I admit, a certain girl-who-cried- Roe aspect to the claim that this is a court ready to tip: We've heard it before, and it hasn't happened. Thankfully, the court seems to have an internal gyroscope that prevents it from tilting too far. The weight of precedent tugs against too much change, too fast.

Moreover, presidents don't always get what they want, and three Republican nominees -- O'Connor, Kennedy and Souter -- have turned out to be enormous disappointments to conservatives.

But conservatives' willingness to tolerate another "stealth nominee" has evaporated. Just ask Harriet Miers. And if the conservative majority is buttressed and energized, the force of precedent may not be enough to forestall radical change.

The Kennedy center, such as it is, may not hold.

marcusr@washpost.com

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