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Justice Kennedy plays pivotal role at top court

The bench has four conservatives, four liberals. His is the swing vote.

By ASSOCIATED PRESS
Published April 8, 2007

WASHINGTON - Justice Anthony Kennedy has become the object of his colleagues' attention on a Supreme Court with four reliably conservative votes and four dependably liberal.

Six cases before the Supreme Court this term have come down to 5-4 votes. Kennedy, alone, was in the majority every time.

Two cases last week - including one the court turned down - highlighted his pivotal role in shaping just about any matter of consequence before the justices.

It is his vote that could decide pending cases on abortion and school integration, as well.

In a victory for environmentalists in the first Supreme Court case on global warming, Kennedy showed he can frustrate conservatives who hoped the court would move firmly to the right with two appointees of President Bush on board.

A setback for Guantanamo detainees, in the other case, demonstrated that the court's conservative and liberal blocs must lean toward the middle or risk losing Kennedy's vote and, thus, a majority.

"When you have a 5-4 majority, it's a majority you can lose," said Pepperdine University law professor Douglas Kmiec.

Like Lewis Powell and Sandra Day O'Connor before him, Kennedy has become the court's "swing justice," a term he dislikes because he says it implies vacillation. Yet the evidence so far this term shows how well the phrase fits.

Kennedy was part of the five-vote majority in the environmental decision last week that criticized the Bush administration's inaction on global warming.

On the same day, Kennedy's importance also was evident in a decision not to hear cases of prisoners who want to use U.S. courts to challenge their indefinite detention at the Guantanamo Bay naval base in Cuba.

Justice John Paul Stevens, author of two earlier decisions that gave the prisoners some legal protections, could have joined the other three liberal justices and been the fourth vote needed to hear the cases.

But, while four justices can compel the court to hear an appeal, it takes five votes to fashion a majority once the case is heard. Stevens, leader of the court's liberal bloc, "was worried that Kennedy wouldn't be the fifth vote at this point in time," said Duke University law professor Erwin Chemerinsky.

Kennedy and Stevens issued a joint statement saying it was premature for the Supreme Court to hear the cases now.

In his 19 years on the court, the appointee of President Ronald Reagan has been criticized for deciding cases without an overarching judicial philosophy. As a result, his vote appears to be up for grabs.

He has infuriated conservatives with decisions in favor of gay rights, abortion rights and against school prayer. His votes against affirmative action and in criminal matters have left liberals cold. Kennedy says he has a well-grounded centrist approach to issues.

Chief Justice John Roberts appears more interested than his predecessor, the late William Rehnquist, in seeking to attract colleagues' support, especially Kennedy's, even if that means less strongly worded opinions, Kmiec said.

"So you now have the chief justice and Justice Stevens, two highly intelligent but remarkably different judicial philosophies contending for the judicial soul of Anthony Kennedy," Kmiec said. "What's not clear to me yet is who the ultimate victor is."

Fast Facts:

Court's 5-4 cases

A look at the Supreme Court's six 5-4 decisions this term, in which Justice Anthony Kennedy has been in the majority each time:

Massachusetts vs. EPA: The court faults the Bush administration's policy on global warming. Majority: Kennedy, Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens. Dissent: Chief Justice John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas.

Philip Morris USA vs. Williams: The court denies $79.5-million in punitive damages to a smoker's widow in a case against Altria Group Inc.'s Philip Morris USA. Majority: Kennedy, Roberts, Alito, Breyer, Souter. Dissent: Ginsburg, Scalia, Stevens, Thomas.

Ayers vs. Belmontes: The court reinstates the death penalty for a California killer. Majority: Kennedy, Roberts, Alito, Scalia, Thomas. Dissent: Breyer, Ginsburg, Souter, Stevens.

Lawrence vs. Florida: The court affirms the death sentence of a Florida killer who missed a deadline for an appeal. Majority: Kennedy, Roberts, Alito, Scalia, Thomas. Dissent: Breyer, Ginsburg, Souter, Stevens.

Marrama vs. Citizens Bank: The court limits the rights of debtors who do not disclose all their assets. Majority: Kennedy, Breyer, Ginsburg, Souter, Stevens. Dissent: Roberts, Alito, Scalia, Thomas.

Limtiaco vs. Camacho: The court sides with Guam's attorney general, who blocked issuance of more than $400-million in a dispute with the U.S. territory's governor. Majority: Kennedy, Roberts, Breyer, Scalia, Thomas. Dissent: Alito, Ginsburg, Souter, Stevens.

[Last modified April 8, 2007, 01:17:21]