Kennedy Center

is the author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. In the history books, the Supreme Court era from 1986 through 2005 will be known as the Rehnquist Court, but it would be more accurate to describe it as the "O'Kennedy Court," one thoroughly dominated by Justices Sandra Day O'Connor and Anthony Kennedy, who held down the ideological center of a closely divided bench. From abortion rights to affirmative action, the religion clauses, the death penalty, states' rights, and other key issues, O'Connor and Kennedy, either separately or jointly, controlled the direction of constitutional law. With some exceptions (most notably Bush v. Gore), they guided the Court toward a soft landing on the politically safe ground of nonradical conservatism.If President Bush succeeds in elevating Judge Samuel Alito to the seat being vacated by O'Connor, this typography will change. Whatever the exact contours of his jurisprudence, Alito's record makes clear that he will join Justices Antonin Scalia, Clarence Thomas, and John Roberts (with some modest gradations among them) on the Court's right wing. And that will leave Kennedy standing alone at the Court's political pivot to be incessantly importuned by colleagues and advocates to the left and right. Kennedy's move to center stage will have consequences, but those activists on the right and left who are either hoping or dreading dramatic change at the Court will almost certainly be disappointed in the short term. Given Kennedy's approach, the Roberts Court, with or without Alito, is likely to start off very much like its predecessor--as a Court that relishes its own power to shape the Constitution and second-guess the states and the other branches of government, but that generally does so within the conservative mainstream of U.S. politics. With remarkable consistency, Kennedy has resisted a counterrevolutionary rollback of progressive Warren- and Burger-era decisions, and, on occasion, he has even joined the liberals to expand civil liberties. Although Kennedy is more conservative than O'Connor in some respects, they have reached similar results in most key areas of law. The main difference between the two is in style, with Kennedy favoring much broader opinions than O'Connor. For that reason, a likely result of Kennedy replacing "O'Kennedy" will be higher stakes in constitutional litigation, as the winners enjoy the benefit of Kennedy's generally sweeping rulings rather than O'Connor's case-specific ones. Thinking purely in terms of bottom-line results, the maximum effect of an Alito confirmation will be to shift the Court to the right in every case where O'Connor would have cast a more liberal vote than Kennedy. The list, however, is shorter than one might think and does not presage overturning any of the usual conservative targets. In lockstep with O'Connor, Kennedy is already on record reaffirming the chief targets of conservative ire: Roe v. Wade, Miranda v. Arizona (guaranteeing persons subject to police interrogation the right to remain silent and to counsel), and Engel v. Vitale (the ban on public school prayer). And, although Kennedy takes a more skeptical view of affirmative action than O'Connor, he has repeatedly declined to join Scalia, Thomas, and William H. Rehnquist in declaring it per se unconstitutional. With respect to the balance of power between the states and the federal government, Kennedy has supported new limits on federal legislative power and helped augment the authority and immunities of the states. But his views regarding federalism are not markedly different from O'Connor's. Like her, Kennedy has shown no interest in unraveling the constitutional underpinnings of the New Deal, and, as reflected in last term's decision striking down California's medical marijuana initiative as inconsistent with federal law, Kennedy is sometimes more solicitous of federal power than O'Connor (who dissented). To be sure, Kennedy has stood significantly to O'Connor's right at times. He thinks a ban on partial-birth abortion is constitutional; she did not. He is much more accommodating of state-sponsored displays of religious symbolism, like the Ten Commandments. But Kennedy is also to the left of O'Connor on numerous civil rights and civil liberties issues. For example, in Lawrence v. Texas, he extended the definition of constitutional liberty to protect consensual acts of gay sex; she did not. Over an O'Connor dissent, he wrote the majority opinion in Roper v. Simmons, striking down the juvenile death penalty. Kennedy also frequently takes a more liberal view than O'Connor on free speech issues, including giving First Amendment protection to flag-burning and striking down Congress's blunderbuss attempts to regulate Internet pornography. Overall, it would be difficult to characterize O'Connor as more "liberal" than Kennedy, or vice-versa. The most salient difference between the two has less to do with the results they reach in individual cases than the methods they employ along the way. O'Connor approaches decisions in a highly personalized fashion, favoring "I-know-it-when-I see-it" legal standards through which she projects her own up-by-the-bootstraps, country-club Republicanism on the law. So it is that abortion regulations are evaluated under her inherently standardless "undue burden" standard, while the constitutionality of public displays of religious symbolism rise or fall on a highly subjective determination of whether they amount to a state "endorsement" of religion. Kennedy's jurisprudence, by contrast, is based not on such gut reactions, but on his somewhat grandiose vision of Supreme Court justices as knights errant seeking constitutional truth and righting constitutional wrongs, regardless of their own personal preferences. Hence his proud lament in the Texas flag-burning case, "The hard fact is that sometimes we must make decisions we do not like." In keeping with this role, Kennedy's opinions often feature grand statements of principle, as in the areas of abortion and gay rights, where, almost mystically, he described the concept of constitutionally protected liberty as "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Sometimes Kennedy's idealistic view of the Constitution and the Court's work leads in conservative directions, as when he prefaced his most important federalism decision, U.S. Term Limits v. Thornton (which strikes down federal term limits) by extolling the genius of the Framers, who "split the atom of sovereignty." Other times, as in Lawrence v. Texas, it drives him to an expansive view of individual rights. But, in almost every case, Kennedy expresses a self-confident vision of the law quite at odds with O'Connor's self- referential minimalism. As a result, with Kennedy at the Court's tiller, the aggregate direction of constitutional law may remain relatively unchanged, but the tacks right and left will be more pronounced than O'Connor would have chosen. This distinction takes on added meaning in the context of a Court engaged in an unprecedented level of judicial activism--thanks again, in large part, to O'Connor and Kennedy. Both justices have shown themselves to be extraordinarily comfortable with the exercise of judicial power, even if that means overturning the judgments of elected representatives. Between 1995 and 2000, for example, O'Connor voted to overturn a state or federal law 50 times, Kennedy 51 times. Whether the issue is unbridled executive branch discretion over enemy combatants, or deciding a presidential election, or nullifying attempts to legislate morality, these justices have led the Court to declare resoundingly that it is, indeed, the ultimate arbiter of the law, unabashed about trumping the judgments of others. There is no reason to think that this hallmark of the modern Court is likely to change should Alito join the Court. And, thus, the most important question to be asking as Alito sits before the Senate has little to do with the political direction of the Court. That is set. With Kennedy in the driver's seat, the Court will be largely what it has been: generally quite conservative yet narrowly divided, yawing one way or the other depending on Kennedy's vote. Instead, the burning question is one of judicial power and whether we, as a nation, should be comfortable yielding to nine, unelected, life-tenured judges the monumental and ever-increasing power over our constitutional legacy that they have now appropriated and exercise almost without question.

By edward lazarus