Political Skullduggery

Today's entry does not involve skullduggery per se. It can be viewed instead as a general public affairs piece on the inner dynamics of the Roberts Court.

Justice Anthony M. Kennedy has emerged as the most important player -- the sole swing vote.

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...

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.

As a result, the court not only struck down Bush's military commissions, but also ruled that the police need permission from both occupants to search a home without a warrant, gave a Tennessee death row inmate a chance to win a new trial, and said that Texas violated the Voting Rights Act by diluting the voting power of Latino Democrats in one district. (Twice Kennedy was part of mixed left-right coalitions.) ...

The "swing voter" role is not entirely new to Kennedy, who has been in that position before, along with O'Connor.

Indeed, Kennedy is disliked by many conservatives because he has voted with liberals to uphold gay rights and abortion rights, and to strike down the juvenile death penalty.

But since O'Connor retired from the court Jan. 31, and Alito, who replaced her, has lived up to his conservative billing, Kennedy has been all alone as the swing voter -- with the added clout, and added pressure, that implies...

The pressure on Kennedy could mount next term, when the court will rule on the constitutionality of a federal law banning the procedure opponents call "partial birth" abortion, and will decide whether local governments may consider students' race when assigning them to public schools.

Though Kennedy is on record in favor of Roe v. Wade, the 1973 decision that recognized a right to abortion, he dissented angrily from a 5 to 4 ruling in 2000 that struck down a state law banning partial-birth abortion...

Kennedy has always voted against affirmative action, most recently in 2003 when he voted against race-conscious admissions policies at the University of Michigan's law school and undergraduate program.