Swing time.

The law, lawyers, and the court.
Jan. 17 2006 5:07 PM

Swing Time

Anthony Kennedy—the new Sandra Day O'Connor.

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Lost in last week's cacophony about the critical role of Sandra Day O'Connor as sole and exclusive swing voter on the U.S. Supreme Court was any sign of respect for the other sole and exclusive swing voter on the U.S. Supreme Court: Anthony M. Kennedy. And in case anyone else missed this subtle shift in power, Kennedy's majority opinion in today's big physician-assisted-suicide case serves as the perfect reminder of who's going to call the shots in the near future.

The 6-3 opinion in Gonzales v. Oregon—a decision upholding Oregon's physician-assisted-suicide law from attack by the Attorney General's Office—sharply outlines the court's Anthony Kennedy-shaped future. The dissenters are Antonin Scalia, Clarence Thomas, and—not surprisingly—Chief Justice John Roberts. In the majority you'll find the court's usual moderate-to-liberal lineup: John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer. The other two votes for Oregon thus come from the "swingers": O'Connor, who will (barring some stunning revelation that he dances for money in women's lingerie) soon be replaced by Samuel Alito, and Kennedy. In other words, this opinion was Kennedy's latest big chance to swing for the bleachers, and swing he does.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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While it's true that O'Connor has tended to vote with the majority more frequently than Kennedy, and that she has done so in some big 5-4 decisions, it's also true that in other extremely contentious areas, it is Kennedy, not O'Connor, who has swung the court leftward. It was Kennedy who weighed in with the broad rationale of the court's liberals on a key gay-rights case; Kennedy who voted with the court's liberals to strike down the death penalty for juveniles and the mentally disabled; and Kennedy who has joined with O'Connor (and David Souter) to reaffirm the basic right of a woman to have an abortion. Kennedy also offended the political right when he authored a key opinion prohibiting sectarian prayer at a public-school graduation. And last term saw Kennedy voting—against O'Connor and with the court's liberals—on major cases giving local governments permission to seize private property in the interest of economic development and denying states the right to trump federal medical-marijuana laws.

It's Kennedy who was labeled by the right as "the most dangerous man in America," and Kennedy whose name is most often associated with the word "impeachment." Kennedy uniquely engenders hysteria, in part because of his tendency to think grandly and write sweepingly. O'Connor's case-by-case approach allows the right to loathe her on a case-by-case basis. But Kennedy's tendency to tilt the whole universe on its axis with a stroke of the pen sends his enemies into orbit. The entire English lit department at Yale would be hard-pressed, for example, to deconstruct Kennedy's Big Rights language in the gay-rights case, which banned the states from outlawing sodomy. It was Kennedy, not William Brennan, who penned the sentiment in that opinion:

 ... times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Today's opinion in Gonzales includes few of the usual Kennedy-esque linguistic aeronautics. But that's probably because it deals not with "rights" but with the mundane world of statutory interpretation.

Jeffrey Toobin at The New Yorker recently explained why Kennedy sometimes parts company with his buddies on the court's hard right wing. Of the court's conservatives, only he has an abiding affection for all things foreign, including—to the intense chagrin of some of his colleagues—foreign law. Kennedy's pragmatic reason for citing to foreign courts as a means of fostering worldwide legal respect is a part of his rather grand vision for the lofty role of the Supreme Court in government. He is invariably parodied as the court's great white agonizer; when pondering a vote in a case, he is said to walk the court's ramparts for hours, like an extremely tall Hamlet. For better or worse, he takes the reputation of the court extremely seriously, both in the eyes of the world and the nation.

But another key to understanding Kennedy's role as a swing voter is simpler: He just really, really likes the power. In his book Closed Chambers, Edward Lazarus, a former clerk for Justice Harry Blackmun, writes that Kennedy bragged about his ability to occupy one of the pivotal positions on the court, deliberately and craftily espousing views at conference that would make him a "necessary but distinctive fifth vote for a majority." Like O'Connor, Kennedy may be a legal politician before he is an ideological purist. And with O'Connor soon to be out of the picture, Kennedy may now get the chance to really make some constitutional hay.

All of which raises another question now bandied about by hard-core court-watchers: What will happen when the good-natured and temperate Chief Justice Roberts begins to work his twinkly charm on Kennedy? Is it possible that while Scalia's insults helped push the conservative Kennedy toward the left, the tractor beam of Roberts' niceness may pull him back into the fold? That's certainly the hope of the political right. But if today's opinion in Gonzales is a harbinger of things to come, Roberts has some fairly heavy-duty twinkling ahead of him.

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