The new John Roberts Supreme Court is only one term old and yet already we're all wrong about it.
Liberals had feared, and conservatives had feted, the end of judicial review as we know it, at least until this week's blockbuster ruling on the scope of presidential war powers in Hamdan v. Rumsfeld proved that bit of conventional wisdom wrong, practically before it had become conventional. Predictions of a new era of hands-off judicial minimalism may have been premature.
Yes, we are seeing the expected shift to the political right with the replacement of moderate Justice Sandra Day O'Connor by conservative Justice Samuel Alito. But, more significantly, the role of swing justice has itself swung from O'Connor to Justice Anthony Kennedy. On virtually all the most divisive issues, today's court is now a Supreme Court of One.
Yes, Kennedy has inherited the power to decide crucial cases, and he's started to show us this term what that might mean. In Hamdan he joined with the court's left wing to invalidate the military tribunals President Bush had concocted for the detainees at Guantanamo Bay. The majority opinion he joined, authored by John Paul Stevens, was neither minimalist nor mild: "In undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."
But more crucially, Kennedy has appropriated O'Connor's trick of writing either an opinion or a concurrence that goes on to become the law of the land. O'Connor was famous (and not always in a good way) for signing on to an opinion, but on narrower grounds than the other four justices in the majority. The trick is that the justice who decides the case most narrowly then speaks for the whole court. And that's how O'Connor imprinted her views on an awful lot of jurisprudence.
But unlike O'Connor, who invariably pooh-poohed her pivotal role on the court (always claiming that she had only one vote, like every other justice), Kennedy is said to relish it. In his controversial book Closed Chambers, Edward Lazarus, a former clerk for Harry Blackmun, claimed that Kennedy actively seeks out these pivotal positions on the court, deliberately staking out positions that would make him a "necessary but distinctive fifth vote for a majority."
The fact that Kennedy is not rigidly moored to any one easily classified ideology or interpretive theory has led to some spectacular defections from the court's conservatives, every one of which stand as festering sores for his conservative critics. This was, in their minds, Robert Bork's seat, after all.
It was Kennedy who allied with justices David Souter and Sandra Day O'Connor to preserve the core holding of Roe v. Wade,and it was Kennedy who authored the court's most sweeping defense for decriminalizing gay sodomy. And Kennedy, reversing himself, who voted with the court's liberals to strike down the death penalty for juveniles and for the mentally disabled. Kennedy also authored a crucial church/state opinion prohibiting sectarian prayer at a public-school graduation.
The fact that Anthony Kennedy is rumored to be somewhat suggestible—easily influenced by his colleagues, the media, his affection for foreign things—makes his critics even more nervous. It sometimes makes his fans even more so: Adam Cohen recently wrote of him in the New York Times that, at the very least, "there is something refreshing about a justice who genuinely seems to have an open mind." But since when is doing justice meant to be a refreshing enterprise?
If Edward Lazarus was correct in characterizing some vital Kennedy decisions as the fruits of "a tug-of-war for Kennedy's mind" between his law clerks, just imagine how fascinating it has become to see that same, higher stakes, tug of war playing out, not only behind the oak doors of judicial chambers but in the courtroom, in the newspapers, and among the justices themselves.