By Robert Barnes
Washington Post Staff Writer
Sunday, May 13, 2007
It is easy to define Justice Anthony M. Kennedy's role on the Supreme Court this term, and difficult to exaggerate his importance.
To borrow President Bush's self-description, he's "The Decider."
He is the only justice to be in the majority in each of the term's unusually high number of 5 to 4 decisions. At this midpoint of the court's rulings, he has been on the losing side in only two of the 40 opinions issued.
Because the court so far has shown itself to be strikingly -- and evenly -- divided on ideological issues, Kennedy holds enormous power in pivoting between the left and right, legal experts say. He stands alone in the middle -- and that enhances his importance.
"There's nowhere else to go" when each side looks for a majority-clinching fifth vote, said Lee Epstein, a professor at the Northwestern University School of Law and an expert on the court's voting patterns. "There is this giant hurdle called Kennedy."
The label of "swing vote" is one that justices often shun. For some, it connotes a wobbly judicial philosophy rather than a propensity for moderation. For years, Justice Sandra Day O'Connor was seen as the court's pivotal vote, a role sometimes shared with Kennedy.
But while O'Connor had a reputation for deciding only as much as needed for the case at hand, Kennedy has used the platform for bold and often controversial pronouncements. "I think it's fair to say Justice Kennedy tends to write broadly, as opposed to O'Connor," said George Washington University law professor Orin Kerr, a former Kennedy clerk.
This term, for instance, writing the majority opinion upholding the federal Partial Birth Abortion Ban Act, Kennedy staked out new ground in addressing the morality of the abortion procedure and the "regret" many women who have had abortions feel -- although he acknowledged there was "no reliable data to measure the phenomenon."
The outrage from abortion rights activists to what they called Kennedy's paternalistic point of view recalled conservative outrage at the grandiloquent language Kennedy employed 15 years ago when he voted with the other side to uphold the right to abortion established in Roe v. Wade.
"One of the things so striking about the (abortion) decision is his self-assuredness," said Stanford University law professor Pamela Karlan, noting that Kennedy wrote that another finding was "self-evident."
On the abortion decision, Kennedy sided with the conservatives. In the court's first-ever consideration of global warming, he joined with the liberals to rebuke the Bush administration on regulating greenhouse gases.
Kennedy has been the pivotal vote on every death penalty case decided by the court this year. He holds the key to whether the court considers once again the rights of detainees at Guantanamo Bay, Cuba.
"He's the definition of the median justice, as close as you can get to the center of the court," Epstein said.
Indeed, Kennedy has voted as often with moderately liberal Justice Stephen G. Breyer as he has with the consistently conservative Chief Justice John G. Roberts Jr.
Most of the court's decisions are not ideological -- there are more unanimous decisions than ones settled by a single vote. And not all of the 5 to 4 decisions pit the ideological conservatives -- Roberts, Antonin Scalia, Clarence Thomas and O'Connor's replacement, Samuel A. Alito Jr. -- against the more liberal justices -- Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens -- with Kennedy waiting to break the tie.
But many do. On the death penalty cases that have come before the court this year, for instance, the conservatives have consistently voted to uphold a state's imposition of capital punishment, while the liberals have sided with inmate complaints that their rights were violated.
"So Justice Kennedy is even more of an important swing vote than he was before," said Richard Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment.
In two of the cases, Kennedy sided with conservatives; in three he voted with the liberals. There are four others pending.
"It's clearly going to be an important role he's playing," Dieter said. "People are speaking to him in their arguments."
The 5 to 4 decisions totaled 11 in the 2005-06 term, with Kennedy in the majority in eight of them. There already have been that many this year, indicating a divided court and Kennedy's role as the deciding vote. His two dissents -- involving sentencing rules in California and garbage-hauling in New York -- came in cases in which ideological divides played no role.
Kennedy, a 70-year-old Californian named to the court by Ronald Reagan in 1988, is a moderate conservative, and court watchers expect his conservatism to be more evident in pending cases concerning school desegregation and campaign finance. But his role in the middle does not endear him to the left or to conservative activists who are disappointed he has not been a dependable partner in changing the court.
Conservatives still are irked at Kennedy's 1992 opinion in Planned Parenthood of Southeast Pennsylvania v. Casey-- written with O'Connor and Souter -- to uphold the basic abortion right found in Roe while allowing states to restrict the procedure. Kennedy in the past had been a critic of Roe, and his words from the bench that day -- "at the heart of liberty is the right to define one's own concept of existing, of meaning, of the universe and of the mystery of life" -- are mocked by the right as the "sweet mystery of life" speech.
While conservatives and activist abortion opponents applauded last month's decision in Gonzales v. Carhart-- despite a relatively narrow holding, it opened the door for additional restrictions and marked a reversal in the court's abortion jurisprudence -- it doesn't erase questions of Kennedy's reliability on other issues.
"No advocate of judicial restraint is going to look at this decision and say, "Aha, Kennedy has seen the light,' " said M. Edward Whelan III, president of the Ethics and Public Policy Center.
Likewise, those on the left say they now fully understand Kennedy's personal opposition to abortion, and that for now, he is the likely arbiter of what kinds of abortion restrictions passed by the states will be upheld.
"I've realized how my hopes for him were terribly misplaced dreams of a litigator facing a doomed case," wrote Priscilla Smith, who represented the Center for Reproductive Rights in Gonzales v. Carhart .