O'Connor vs. Kennedy as the Supreme Court's swing voter.

The law, lawyers, and the court.
June 20 2008 4:36 PM

Swing Your Partner

O'Connor vs. Kennedy as the justice in the middle.

Justices O'Connor and Kennedy. Click image to expand
Sandra Day O'Connor and Anthony Kennedy

As the court's longtime swing voter, Justice Sandra Day O'Connor was a bit of a tease. You prayed and nibbled your nails while you waited too see whether she would come down on your side, and when she did, you felt great relief—and then anxiety. She'd given you her fifth vote, but she wasn't ready to commit. The opinion she'd written or signed teetered and hedged before reluctantly slumping down on your side of the scale. Looking ahead, you weren't sure what she or the court would do the next time a similar case came along. All you could do was console yourself with eternal hope: At least when you lost her, she didn't flit far out of reach, and you might win her back.

Justice Anthony Kennedy, on the other hand, is a swinger who knows how to be in a long-term relationship. When you've succeeded in wooing him, you know it. You read some of your own strongly felt sentiments taken to stirring heights in his opinions. Kennedy gives you passion. He's often been portrayed as the impressionable agonizer. But if he goes back and forth on the big ones, you often can't tell once he's done writing. He gives the winning suitor the comforting feeling that he's with you, for real, for the long haul.

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That's one way to compare the two justices. Viewed through this lens, Kennedy can look pretty good to liberals on occasion, even if he looks pretty good to conservatives more often. But there's another method of comparison that explains why the left still longs for O'Connor. If you track the two justices across different areas of law, counting up the number of fifth votes cast rather than the scope of the decisions they wrote or joined, O'Connor gave the left more. On voting rights, campaign finance, the separation of church and state, and certainly on abortion and sex discrimination, she's the one. Georgetown law professor and contributor to Slate's Convictions blog Marty Lederman has been keeping the list. Kennedy goes deeper. But O'Connor went wider.

The contrast was evident last year when Kennedy issued his opinion in the late-term abortion case, Gonzales v. Carhart. He not only allowed the restriction on abortion in question to stand; he "relied on ancient notions about women's place in the family and under the Constitution" in mourning for women who come to regret their abortions later, as Justice Ruth Bader Ginsburg objected in her dissent.

Kennedy's overall record on sex discrimination and women's rights is the opposite of reassuring. In a forthcoming paper, Drexel law professor David S. Cohen charts Kennedy's votes in 43 such cases in which the court was not unanimous. He finds that Kennedy voted to strike down the sex-discrimination claim (or voted in favor of the abortion restriction) 78 percent of the time. In cases that split 5-4, his conservative record is 97.5 percent. O'Connor voted in 40 of the 43 nonunanimous cases and voted yes to a sex-discrimination claim, Cohen reports, 34 percent of the time when Kennedy voted no. In no case did they switch sides, with Kennedy's vote recognizing merits of a claim that O'Connor rejected. "If you look at Justice Kennedy's entire record, he has very traditional notions about gender, particularly the family," Cohen says.

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