Justice Kennedy was key to conservatives' win in campaign finance decision

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By Robert Barnes
Washington Post Staff Writer
Sunday, January 24, 2010

If there was a new boldness from the Supreme Court's conservative majority in last week's landmark ruling on campaign finance laws, there was also an underlying and familiar truth:

When the Roberts court has broken with the past and shifted the court's jurisprudence, it has gone only so far as the place where Justice Anthony M. Kennedy already is comfortable.

On the high-profile issues that draw public attention -- abortion rights, race, campaign finance -- Kennedy's dissents from the past provide a blueprint for today's majority opinions.

It was no surprise that Kennedy wrote for the majority in Citizens United v. Federal Election Commission, which erased two of the court's precedents and panned decades of legislative restrictions on corporate spending in election campaigns.

The 73-year-old Ronald Reagan nominee had been a dissenter in both of the overturned cases: the 1990 decision in Austin v. Michigan Chamber of Commerce, which said corporations could not use their profits to support or oppose candidates, and the court's 2003 decision upholding the constitutionality of corporate spending restrictions in the McCain-Feingold campaign finance reform act.

Thursday's Citizens United opinion was an elaboration on the free speech argument Kennedy advanced 2o years ago.

"It's a vindication of the approach he's wanted to take on the First Amendment for a long time," said Helen J. Knowles of the State University of New York at Oswega, who recently authored a book about Kennedy's legal philosophy.

It was made possible by the decision of Chief Justice John G. Roberts Jr. and fellow George W. Bush appointee Samuel A. Alito Jr. to put aside concerns about overturning past court decisions, something each said during confirmation hearings should be done rarely.

It drew a stinging rebuke from Justice John Paul Stevens. "The only relevant thing that has changed," he wrote in dissent, "is the composition of this court."

The idea that Kennedy is central to almost any decision confronting the ideologically divided court is hardly new.

With the departure of Justice Sandra Day O'Connor, he has become the pivotal player on a court that often divides into Team Roberts -- with Antonin Scalia, Clarence Thomas and Alito -- and Team Stevens: Ruth Bader Ginsburg, Stephen G. Breyer and rookie Sonia Sotomayor subbing for the retired David H. Souter.

It has led to criticism, mostly from legal observers on the right, that Kennedy's jurisprudence is gauzy and flexible. But like O'Connor before him, Kennedy seeks to separate himself from the label of "swing" justice, says Knowles, author of "The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty."


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