Will Justice Kennedy Withstand the Liberal Assault

Kennedy Seen as The Next Justice In Court's Middle
Alito Expected to Tilt Conservative

By Charles Lane
Washington Post Staff Writer
Tuesday, January 31, 2006; Page A04

Should Samuel A. Alito Jr. be confirmed to the Supreme Court today, as expected, it will mark the beginning of a new Supreme Court era -- and, perhaps more important, the end of an old, familiar one.

For much of the past 24 years, Justice Sandra Day O'Connor, whom Alito would replace, has wielded the swing vote on a split court, usually casting her lot with the court's four other conservative justices, but siding with liberals on such crucial issues as abortion, affirmative action and campaign finance reform.

Alito's arrival, however, may turn the O'Connor Court into the Kennedy Court. If, as many expect, Alito forms a four-vote conservative bloc with Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas, that would leave Justice Anthony M. Kennedy -- a conservative who has occasionally voted with liberals on gay rights, the death penalty and abortion -- as the court's least predictable member.

"Assuming the predictions about Alito's views are correct, he turns Justice Kennedy into a swing vote on a lot of issues," said Pamela Karlan, a professor of law at Stanford University who teaches a course on the current Supreme Court.

No case illustrates the new dynamic better than the challenge to a Republican-drafted congressional redistricting plan for Texas, which the court will hear on March 1. The stakes in the case are huge and could include eventual control of the closely divided House.

The Texas plan, drafted at the request of then-House Majority Leader Tom DeLay (R) and rammed through the state legislature in 2003 over Democratic protests, created a first-ever majority-Republican congressional delegation to match the state's overall GOP voting preference.

But opponents say it was an unconstitutional, partisan gerrymander. The court has split down the middle on such claims in the past, with the four liberal justices -- John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer -- saying that the court can and should decide when partisanship goes too far.

Conservatives -- the late Chief Justice William H. Rehnquist, O'Connor, Scalia and Thomas -- said the courts should stay out of this political thicket.

Kennedy, however, said that he would not rule out the possibility that a partisan gerrymander could violate the Constitution, although such a plan had not yet been found.

On this issue, at least, Alito, who acknowledged at his confirmation hearings that he was a youthful skeptic about the court's past efforts to fix legislative districts in the name of "one person, one vote," could vote as O'Connor did. If, as expected, Roberts followed suit, that would leave Kennedy to decide the case.

Another issue on which Alito faced sharp questioning at his hearings -- presidential war powers -- is also on the court's docket. The key case is a challenge to President Bush's plan to try terrorist suspects at military tribunals.

A former aide to Osama bin Laden, Salim Hamdan, claims that his pending trial before a tribunal is unlawful because it has not been authorized by a statute or the Constitution. He also argues that the federal courts should be allowed to enforce his rights as a prisoner of war under the Geneva Conventions.

This is no revelation, Kennedy has always been the predictable swing justice in a newly Conservative SCOTUS. In actuallity it is now just a balanced court. Kennedy has been almost as unpredictable as was Sandra Day O'Conner. The truth is all of the so-called Conservative Justices are unpredictable if you are results oriented. A true justice (and this has been the originalist argument all along) must be process oriented. The law is what it is, as stated in the Constitution and legislated by Congress. The problem with the Liberal view of what a SCOTUS justice should be is that it makes the Court a political football. When a justice is results oriented, then he is politicizing the one branch which must remain a political. It is only by remaining true to originalism and the Constitution as written and amended, that the SCOTUS can remain above the fray and hand down unbiased, objective decisions.

Full Story: The Importance of Remaining Conservative

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