When it comes to who serves as Secretary of Defense, George W. Bush is the decider. When it comes to close votes on the Supreme Court, that distinction belongs to Anthony Kennedy, who has taken Sandra Day O’Connor’s place as the key swing vote.
The Supreme Court’s just-concluded 2005-2006 term was a historic one, in which two new justices, Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr., changed the court’s style and ideological balance. But by the end of the term, it was clear that the main impact of the turnover was to enhance the influence of a justice who has been at the court since 1988, 69-year-old Anthony M. Kennedy.
With the departure of centrist Justice Sandra Day O’Connor, the court is now frequently split between two four-justice liberal and conservative blocs, with Kennedy as the sole remaining swing voter. An eclectic and sometimes inscrutable moderate conservative, Kennedy repeatedly cast the decisive vote on the most polarizing issues the court faced, from President Bush’s military commissions, to the Clean Water Act, to the death penalty. He is poised to do so again next term when the court takes up the issues of abortion and school integration. “Justice Kennedy seems to be asserting himself more and seems to be relishing the role,” said Richard Lazarus, a law professor at Georgetown University who heads the school’s Supreme Court Institute. “All the justices enjoy being more significant rather than less significant, and he has certainly asserted his role as a moderating force on both sides.”
In the 17 cases during the 2005-2006 term that were decided by five-vote majorities, Kennedy was on the winning side 12 times, more than any other justice, according to figures compiled by the Supreme Court Institute. In six of those cases, Kennedy voted with the conservative bloc, made up of Roberts, Alito, Antonin Scalia and Clarence Thomas. As a result, the court upheld most of Texas’s Republican-drafted redistricting plan, restored the death penalty in Kansas, and ruled that police do not have to throw out evidence they gather in illegal no-knock searches. But four times, Kennedy, a 1988 appointee of President Ronald Reagan, defected to the liberal justices, John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
That Kennedy would emerge as the swing vote surprises no one that follows the Court. I’m not sure I understand WaPo math, however. There were 12 times where Kennedy was the deciding vote; 6 times, he voted with the conservatives and 4 times with the liberals. Using my handy dandy HP15C calculator with reverse Polish notation, I come up with “10” which, if my figures are right, means we have two cases unaccounted for.
