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Monday, December 17, 2012

Hang in there, Tony.

Associate Justice Anthony M. Kennedy, during a Supreme Court
group portrait in Washington on October 8, 2010. (Associated Press)

Of all the concerns about what four more years of President Obama will mean for the United States, perhaps the single most disturbing prospect is an opportunity to shift the balance of the Supreme Court.

Despite this president's consternation, the judiciary is a coequal branch of government, and it has long provided a crucial check on overreach by the other two branches, especially the current executive. Among the current Court's unanimous rebukes of the Obama administration's positions are its decisions in:
The administration has enjoyed some victories before the high court, to be sure, most notably in National Federation of Independent Business v. Sebelius, where a five-justice majority upheld the constitutionality of the president's signature health care reform law, with one exception: seven of the nine justices agreed that the federal government couldn't threaten States with the loss of theirexisting Medicaid funding if they decline to comply with the law's Medicaid expansion. Justice Anthony Kennedy, who many expected to be the "swing" vote that would decide the case, instead sided with Justices Scalia, Thomas and Alito in a scathing dissent from the core ruling.

The cases in which Justice Kennedy finds himself in the minority are becoming more and more infrequent. Last term, he voted in the majority 93% of the time, more often than any other justice. Of the 42 cases in which the justices split, Kennedy voted with the majority in all but five--again, more often than any other justice.

Because of his pivotal role in so many decisions, the thought of a Democratic president--especially one as hyper-partisan as Obama--appointing Kennedy's succesor is troubling to say the least. Judicial appointments are arguably one of the president's most significant powers; he can stock another branch of government with whomever he wants, restrained only by the advice and consent of the U.S. Senate. President Obama has already made two Supreme Court appointments, but Justices Sotomayor and Kagan replaced like-minded liberals, so there was no significant change in the ideological composition of the Court. In this respect, their appointments weren't a loss for conservatives so much as a missed opportunity. The same could be said if Obama gets to appoint a successor to Justice Ginsburg or Justice Breyer.

If one of the Court's more conservative members should die or retire, however, then this president will have an opportunity to shift the ideological balance of the high court, possibly for decades to come. There's little danger of Chief Justice Roberts or Justices Alito and Thomas stepping down anytime soon, and Antonin Scalia is unlikely to leave with a Democrat in the White House. That leaves Justice Anthony Kennedy, notorious for playing his cards close to the vest.

Although appointed by President Reagan, Kennedy has not been a reliably conservative vote on the Supreme Court. He disappointed the Right on cases involving eminent domain, states' rights, the death penalty and the right of enemy combatants to petition for a writ of habeas corpus. His voting record more closely aligns him with William H. Rehnquist than any of his other erstwhile colleagues. His opinions reflect a comprehensive approach to interpreting the Constitution, going so far as to draw on international law and recent changes in American law and traditions. 

Ideologically, Kennedy is probably best described as a moderate conservative. Some have slapped him with the "libertarian" label. Here's something by David Boaz, the executive vice president of the Cato Institute:
Justice Kennedy seems to be very concerned with liberty. He often sides with conservatives on economic issues (which are actually never mentioned by Time) and campaign speech, and with liberals on civil liberties, gay rights, and school prayer. Pretty inconsistent, huh?
Or then again, maybe Justice Kennedy has a basically libertarian view of the world and the Constitution. The word “libertarian” never appears in the article. Perhaps it should.

And it’s not like the idea of Justice Kennedy’s libertarianism is a deep, dark secret. The writers might have consulted Helen Knowles’s book The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty. Or Frank Colucci’s book Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty. Or Randy Barnett’s Cato Supreme Court Review article on the Texas case, “Justice Kennedy’s Libertarian Revolution.”
I’m not saying that Justice Kennedy is a down-the-line, Nozick-reading, Cato Institute libertarian. He did join the Court’s statist majority in the medical marijuana case Raich v. Gonzales. And he infuriated libertarians by joining the majority in striking down state term limits and upholding state eminent domain. But the books and article cited above, and the Institute for Justice’s 1997 rating of Supreme Court justices, do point to a strong libertarian streak in Kennedy’s jurisprudence.
Kennedy's background certainly doesn't contradict this assessment. As a lawyer in California, he worked closely with then-Governor Ronald Reagan, including on Proposition 1, a proposed amendment to the state constitution that would have limited state taxing and spending powers. (Voters rejected it in 1973.) It was Reagan who recommended to then-President Ford that he appoint Kennedy to the U.S. Court of Appeals for the Ninth Circuit. 

However he might be categorized, Kennedy has provided critical votes in decisions that struck down government overreach. Had someone in the mold of Sonia Sotomayor or Elena Kagan been on the Court in his stead, dozens of cases likely would have been decided differently. Our jurisprudence on many constitutional issues, involving everything from civil liberties to the commerce clause to substantive due process, would be very different.

It's possible that Kennedy adamantly wants a Republican president to choose his successor and has no desire to give up his seat while Obama is president. It's also possible that he might do the Rehnquist thing and stay on until he's ten toes up. Whatever the case, here’s hoping he sticks it out for at least four more years.

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