Swing for the bleachers.

The law, lawyers, and the court.
July 1 2006 8:33 AM

Swing for the Bleachers

The tug of war for the mind of Anthony Kennedy.

Supreme Court Justice Anthony Kennedy. Click image to expand.
Supreme Court Justice Anthony Kennedy

The new John Roberts Supreme Court is only one term old and yet already we're all wrong about it.

Dahlia Lithwick Dahlia Lithwick

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

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.

Advertisement

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.

TODAY IN SLATE

Politics

The Democrats’ War at Home

How can the president’s party defend itself from the president’s foreign policy blunders?

Why Time Is on Our Side in the Fight Against Ebola

The Religious Right Is Not Happy With Republicans  

The XX Factor
Oct. 1 2014 4:58 PM The Religious Right Is Not Happy With Republicans  

Catacombs Where You Can Stroll Down Hallways Lined With Corpses

Homeland Is Good Again! For Now.

Crime

Operation Backbone

How White Boy Rick, a legendary Detroit cocaine dealer, helped the FBI uncover brazen police corruption.

Music

How Even an Old Hipster Can Age Gracefully

On their new albums, Leonard Cohen, Robert Plant, and Loudon Wainwright III show three ways.

The U.S. Has a New Problem in Syria: The Moderate Rebels Feel Like We’ve Betrayed Them

Piper Kerman on Why She Dressed Like a Hitchcock Heroine for Her Prison Sentencing

Trending News Channel
Oct. 1 2014 1:25 PM Japanese Cheerleader Robots Balance and Roll Around on Balls
  News & Politics
Crime
Oct. 1 2014 4:15 PM The Trials of White Boy Rick A Detroit crime legend, the FBI, and the ugliness of the war on drugs.
  Business
Moneybox
Oct. 1 2014 2:16 PM Wall Street Tackles Chat Services, Shies Away From Diversity Issues 
  Life
Gentleman Scholar
Oct. 1 2014 4:55 PM Blood Before Bud? Must a gentleman’s brother always be the best man at his wedding?
  Double X
The XX Factor
Oct. 1 2014 5:11 PM Celebrity Feminist Identification Has Reached Peak Meaninglessness
  Slate Plus
Behind the Scenes
Oct. 1 2014 3:24 PM Revelry (and Business) at Mohonk Photos and highlights from Slate’s annual retreat.
  Arts
Brow Beat
Oct. 1 2014 3:02 PM The Best Show of the Summer Is Getting a Second Season
  Technology
Future Tense
Oct. 1 2014 4:46 PM Ebola Is No Measles. That’s a Good Thing. Comparing this virus to scourges of the past gives us hope that we can slow it down.
  Health & Science
Science
Oct. 1 2014 4:03 PM Does the Earth Really Have a “Hum”? Yes, but probably not the one you’re thinking.
  Sports
Sports Nut
Oct. 1 2014 5:19 PM Bunt-a-Palooza! How bad was the Kansas City Royals’ bunt-all-the-time strategy in the American League wild-card game?