One man shouldn’t be this powerful

Charles Lane at the Washington Post, David G. Savage at the Los Angeles Times, and Dahlia Lithwick at Slate all wrote basically the same article this weekend. Analyzing the decisions that were decided by a five-justice majority, it is clear that Anthony Kennedy is the swing vote. Some days he swings to the right as he did earlier in the week when he upheld the Texas redistricting. Other days he swings to the left as he did in the Hamdan case voting to say that the President needed to ask Congress to set up the tribunals to hear the case of Osama’s driver. The trend is clear that Kennedy is the justice most likely to make a majority.

In the 17 cases during the 2005-2006 term that were decided by five-vote majorities, Kennedy was on the winning side 12 times, more than any other justice, according to figures compiled by the Supreme Court Institute.

In six of those cases, Kennedy voted with the conservative bloc, made up of Roberts, Alito, Antonin Scalia and Clarence Thomas. As a result, the court upheld most of Texas’s Republican-drafted redistricting plan, restored the death penalty in Kansas, and ruled that police do not have to throw out evidence they gather in illegal no-knock searches.

But four times, Kennedy, a 1988 appointee of President Ronald Reagan, defected to the liberal justices, John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

As a result, the court not only struck down Bush’s military commissions, but also ruled that the police need permission from both occupants to search a home without a warrant, gave a Tennessee death row inmate a chance to win a new trial, and said that Texas violated the Voting Rights Act by diluting the voting power of Latino Democrats in one district. (Twice Kennedy was part of mixed left-right coalitions.)

With Sandra Day O’Connor gone, Kennedy is all alone as the belle (beau?) of the ball. Everyone wants to dance with him, because if it’s going to be a tight vote, he most likely is going to be the one deciding which side wins and what the law of the land will be. And he seems to be reveling in his power.

But more crucially, Kennedy has appropriated O’Connor’s trick of writing either an opinion or a concurrence that goes on to become the law of the land. O’Connor was famous (and not always in a good way) for signing on to an opinion, but on narrower grounds than the other four justices in the majority. The trick is that the justice who decides the case most narrowly then speaks for the whole court. And that’s how O’Connor imprinted her views on an awful lot of jurisprudence.

But unlike O’Connor, who invariably pooh-poohed her pivotal role on the court (always claiming that she had only one vote, like every other justice), Kennedy is said to relish it. In his controversial book Closed Chambers, Edward Lazarus, a former clerk for Harry Blackmun, claimed that Kennedy actively seeks out these pivotal positions on the court, deliberately staking out positions that would make him a “necessary but distinctive fifth vote for a majority.”

Dahlia Lithwick claims that you can tell that lawyers are writing briefs especially crafted to appeal to Kennedy as are other justices in their opinions. Quoting Kennedy’s own opinions back to him is a special plus.

Doesn’t this strike you as somehow not quite right? Should crucial decisions in our nation come down time after time to just one unelected man, and a man who seems to have no framework for his decisions but is just making it up as he goes along? Did the Framers of the Constitution who envisioned the Judiciary as the “least dangerous” branch really have in mind that it would all come down to one man? It’s bad enough that the whole economy seems to pause in anxious anticipation to figure out what Ben Bernanke is up to. Now we have to wonder what is going on in the head of Anthony Kennedy.

The only solution is to hope that over the years, we can get people on the Court who are more in line with Justice Roberts’ characterization of the Court’s role as being a modest umpire. Until that time, we’re all going to have to try and figure out what makes Anthony Kennedy happy.

(Thank you to John Hawkins for inviting me to guestblog along with all these great bloggers. This post is cross posted at my personal blog at Betsy’s Page.)

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