All Eyes on Kennedy in Court Debate On Abortion

By Charles Lane
Washington Post Staff Writer
Wednesday, November 8, 2006

As the Supreme Court prepares for today's oral arguments on the federal "partial birth" abortion ban, both sides are focusing on the same question: "What will Kennedy do?"

Four liberal justices are considered certain votes against the law, legal analysts said, and four conservatives are expected to uphold it. The pivotal figure in the biggest Supreme Court abortion battle in half a decade is Justice Anthony M. Kennedy, the 70-year-old centrist with an 18-year record of eclecticism on abortion and other social issues.

Abortion rights advocates believe that, despite his past support of a state ban on the late-term procedure that opponents call "partial birth," he may now assume the moderating "swing vote" role that retired Justice Sandra Day O'Connor formerly played. Kennedy's performance may not only determine the fate of this federal abortion law but also foreshadow the overall balance of power on a court that is still defining itself after the addition of two conservatives picked by President Bush.

"If he is the fifth vote, which is the conventional wisdom, we have to come up with something that explains why this case isn't like Stenberg v. Carhart ," the 2000 case striking down a state ban, in which Kennedy dissented, said Stanford University law professor Pamela S. Karlan, who co-wrote a friend-of-the-court brief for California doctors opposing the ban.

Supporters of the ban are attempting to convince Kennedy of the opposite. "If you look at all the briefs, they are all written to Justice Kennedy," said Benjamin W. Bull, chief counsel of the Alliance Defense Fund, an antiabortion legal organization.

Solicitor General Paul D. Clement quotes Kennedy's Stenberg dissent 22 times in his briefs defending the federal law, which was adopted by a wide margin in Congress and signed by Bush in 2003.

Bush's conservative appointees, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., have thin track records on abortion, and some court-watchers say they may not be sure to vote to support the ban.

As chief justice, Roberts might have institutional concerns if the court appears to abandon a major abortion ruling that has been on the books for only six years.

"Roberts might be convinced by stare decisis," the legal principle that favors sticking with established precedent, Karlan said.

Liberal Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer were in the majority in Stenberg and are unlikely to switch.

Conservative Justices Antonin Scalia and Clarence Thomas are firm opponents of Roe v. Wade , the 1973 case that legalized abortion nationwide.

But Kennedy has been known to change his position on big issues.

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