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Thursday, April 06, 2006 

The Sultan of Swing

Sorry for the scant posting lately. I've been incredibly busy with school and my personal life. Also, there hasn't been a Supreme Court opinion handed down in a while. I can only write about what they give me.

The Wall Street Journal has an editorial about Justice Anthony Kennedy. As the new swing vote on the Court, expect more articles written about Kennedy. I don't know if he will get the amount of fame (or infamy) that Justice O'Connor got from her time as the swing vote, but we'll see. The WSJ highlights some of Kennedy's swinging tendencies...
While nominated as a conservative by Ronald Reagan, Justice Kennedy has proven on the High Court that he is open for intellectual rent: from his flip-flop on church-state relations in Lee v. Weisman in 1992, to his anti-abortion nods during his confirmation only to turn into a reliable vote for Roe v. Wade, to his recent embrace of foreign law to justify his own legal preferences, and so on.
The editors are a little kind to Kennedy on the abortion issue here. He didn't only come across as an anti-abortion Justice in his confirmation hearings, he voted that way... for a while. He was on board with then-Chief Justice Rehnquist's draft opinion in Webster v. Reproductive Health Services that would've changed the Constitutional standard of Roe v Wade. He switched positions in Planned Parenthood v Casey, when (based on past votes) it looked like there were five votes to overturn Roe.

The editorial quotes Judge Silberman's famous Greenhouse Effect and the media's influence on the voting patterns of some of the Justices.
If the Justice typically joined with conservatives, however, he'd soon find himself characterized as somebody else's clone, or not very bright, or a traitor to his race, or some other derogation.
Judge Silberman's point is that such media hazing has a larger impact on some Justices than is widely believed, especially given the desire many of them have to be revered and to fit into Washington's social whirl.
Would this really happen? Would a Supreme Court Justice vote to please the media? Well, Mark Tushnet discusses that in A Court Divided...
Kennedy's concern for his public persona is suggested by the views of a former Kennedy law clerk, recounted by Rosen: Kennedy "would constantly refer to how it's going to be perceived, how the papers are going to do it, how it's going to look."
p. 176
I find that very troublesome. The whole idea of lifetime tenure for federal judges is based on a desire to insulate them from public pressure and shifting public opinion. Justice Kennedy seems too preoccupied with what people think of himself and the Court. He enjoys the Washington DC embassy party circuit a little too much. Ronald Reagan once described judges as needing "the lonely courage of a patriot". Kennedy should remember the words of the man who nominated him and stop worrying what the newspapers say about him.

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  • I'm Steve
  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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