The Kennedy Court: Year Two
BY EVAN O’BRIEN

“I must dissent.” These were the last words of the 2006-7 term spoken by Justice Stephen Breyer in Parents Involved in Community Schools v. Seattle School District No. 1, in which the Court struck down voluntary race-conscious school integration programs in Louisville and Seattle. The case was emblematic of the entire term: with few exceptions, the liberal quartet of Breyer, along with Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg, found themselves dissenting from decisions handed down by the Court’s four conservatives, joined by the switch-hitting Justice Anthony Kennedy.

For the second consecutive term, the Court has accepted a docket replete with consequential cases in a wide range of issues. As noted Supreme Court litigator Tom Goldstein has predicted, this term “will help complete our picture of the Roberts Court.” There is good reason, however, to expect the momentum of the conservative justices’ near clean sweep of last term not to carry over into the current one. In some of the most hotly contested cases, Justice Kennedy may well cast his tie-breaking vote with his liberal colleagues.

The Man in the Middle
The task of predicting the outcomes of the term’s big cases will, in all likelihood, ultimately come down to predicting Justice Kennedy’s vote. Ed Whelan, president of the Ethics and Public Policy Center, has observed that in a sharply divided Court “so much depends on predicting where Justice Kennedy will be. That’s not something that’s always easy to predict.” Perhaps the most cogent strategy for predicting the outcomes of this term’s cases is to look at relevant precedent and to see how and with whom Justice Kennedy voted in those cases.

Two of the most important cases this term merit particularly close attention and may signal a return to a liberal jurisprudence. In Boumediene v. Bush (06-1195), the Court will decide the constitutionality of the provision of the Military Commissions Act of 2006 which suspended the writ of habeas corpus for suspected terrorists in custody overseas. Justice Kennedy joined Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006), in which the Court rebuked the Bush administration’s handling of the War on Terror. Justice Kennedy was a critical member of those fragile majorities, which, respectively, established judicial review for overseas detainees and struck down the commissions established prior to Congress’s enactment of the MCA.

Second, in Baze v. Rees (07-5439), the Court will decide the constitutionality of a lethal injection method that is used in many states across the country—a “cocktail” of three drugs, which renders the inmate unconscious, paralyzes his or her muscles, and then causes cardiac arrest. Justice Kennedy has a fairly liberal track record with respect to capital punishment. He joined Atkins v. Virginia (2002), which struck down the death penalty for mentally retarded offenders. More recently, he wrote the decision in Roper v. Simmons (2005), which struck down the death penalty for persons who were younger than eighteen when they committed a capital offense. The consistency and direction of his recent votes in death cases give strong reason to expect him to vote to invalidate this procedure.

Consequences for the 2008 Election
If these predictions are proved accurate, the 2007-8 term will appear quite liberal in comparison to the previous term. Adverse decisions to the conservative base may once again elevate the federal judiciary as an election issue for the Republican Party. “In terms of motivating committed voters,” commented Mr. Goldstein, “ironically I see the Court helping conservatives more than liberals.”

Furthermore, with several vacancies likely to occur in the coming years, the next president will face the opportunity to appoint new justices who will have a long-term impact on the Court’s jurisprudence. Mr. Whelan has argued that “If a Democrat is elected, you’ll have two or three vacancies. If a Republican is elected, it’s more likely to be one, or maybe two.” No matter how the big cases are decided, the 2007-8 term is likely to reaffirm the importance of elections to the makeup of the judiciary. If it is conservative activists who are disappointed by this term’s results, they may discover that, despite the confirmations of Chief Justice John Roberts and Justice Samuel Alito, they are still one vote short of a lasting majority on the Court.]]>