John G. Roberts Jr. may be the new chief justice, but the Supreme Court is not truly the Roberts court, at least not yet.
In the most divisive cases before the court in the term that just ended, it was Justice Anthony M. Kennedy who determined the outcome every time. In unpredictable fashion, he sided some of the time with the court’s conservative bloc and some of the time with its liberals.
His influence was dramatically displayed Thursday, when the court announced that it had struck down President Bush’s specially created military tribunals for suspected terrorists.
As Justices Antonin Scalia and Clarence Thomas read their dissenting opinions in court that day, Roberts and Samuel A. Alito Jr., Bush’s other new appointee, could do no more than listen in agreement.
It was 86-year-old John Paul Stevens, the court’s last World War II veteran, who read the 5-3 majority opinion. He solemnly declared that the president was “bound to comply with the rule of law” and that he could not ignore congressional mandates and long-standing U.S military rules.
He paused to note that Kennedy, seated next to him, had joined most of his opinion, creating a majority. Liberals hailed the result, and conservatives lamented it.
While the issue before the court was the balance of power in government, the drama showed how little the balance of power within the high court itself had changed. Even when Roberts and Alito side with fellow conservatives Scalia and Thomas, they need a fifth vote to prevail.
For the last decade, Justices Kennedy and Sandra Day O’Connor, both Ronald Reagan appointees, had supplied the votes that decided the court’s major cases. They usually joined with the conservatives on issues of crime, the death penalty, civil rights and states’ rights, but with the liberals on abortion, gay rights and school prayer.
Now, with O’Connor in retirement, Kennedy stands alone at the center.
He voted with the conservatives more often than not, but joined the liberals in several major rulings. In one closely watched environmental case, Kennedy wrote a separate, solo opinion that was decisive.
On the issue of military tribunals, Kennedy made it clear that he shared the liberals’ concern about unchecked presidential power.
The Constitution created “a system where the single power of the executive is checked,” he wrote. Even in a national emergency, he said, “the Constitution is best preserved by a reliance on standards tested over time and insulated from the pressure of the moment.”
This does not mean that suspected terrorists cannot be tried in military tribunals, Kennedy said -- but that Congress should first debate the issue and pass a law.
Kennedy is hardly in the camp of the liberals. Just the day before, he spoke for a five-member majority that upheld the mid-decade redistricting plan engineered by former House Majority Leader Tom DeLay for Texas’ seats in the U.S. House of Representatives.
The four liberals, led by Stevens, say “partisan gerrymandering” is unconstitutional. The conservatives, led by Scalia, counter that politics inevitably plays a role in the drawing of electoral districts and that there is no fair way to decide how much politics is too much.
Kennedy came down in between. He says that he finds partisan gerrymandering troubling, but that the Texas plan was not so extreme as to be unconstitutional.
Before 2003, he pointed out, the Democrats had drawn electoral districts that gave them a slim majority of seats in Congress at a time when nearly 60% of Texans were voting Republican. Measured against that map, DeLay’s plan “can be seen as fairer,” Kennedy said.
Developers and property-rights activists hoped a more conservative court, bolstered by Roberts and Alito, would sharply limit the Army Corps of Engineers’ control over hundreds of millions of acres of wetlands. Environmentalists feared the same.
Scalia wrote an opinion to do just that, and he was joined by Roberts, Thomas and Alito. He said federal environmental protection extended only to wetlands that were part of a continuously flowing stream. This would exclude many wetlands in the middle part of the nation and nearly all of those in West, where streams are dry for much of the year.
But in this case, Kennedy refused to go along. Instead, he wrote in a separate opinion that wetlands could be protected as long as environmentalists could show that filling them or draining them would affect downstream waters.
Earlier this year, Kennedy and O’Connor thwarted the Bush administration’s move to void the nation’s only “right to die” law. Oregon’s voters had twice approved a measure that allowed dying people to obtain a dose of lethal medication from their doctors.
Bush’s first attorney general, John Ashcroft, reinterpreted the federal drug control law and said it empowered him to strip Oregon’s doctors of their right to prescribe medication.
In January, Kennedy, speaking for the court, overturned Ashcroft’s order. The administration’s position, he said, would “delegate to a single executive officer the power to effect a radical shift of authority from the states to the federal government to define general standards of medical practice in every locality.”
Had Kennedy agreed with Roberts, Scalia and Thomas to support Ashcroft’s view, the court would have split 4-4 and could have held the case until the next month, when Alito took O’Connor’s seat. Then a 5-4 majority could have ruled in the administration’s favor.
Kennedy, who turns 70 this month, joined the court after a tumultuous confirmation battle. In 1987, Reagan’s first nominee, Robert H. Bork, was defeated in the Senate. His second, Douglas H. Ginsburg, withdrew after reports that he had smoked marijuana regularly as a law professor.
Kennedy, a Sacramento native with a reputation as a straight arrow, was nominated next and won unanimous confirmation in the Senate.
At first, he looked to be a reliable conservative, voting regularly with then-Chief Justice William H. Rehnquist. But in 1992, he split with the conservatives and voted with O’Connor to uphold the right to abortion and to maintain the strict ban on school-sponsored prayers.
Since then, many on the right have portrayed him as a traitor. Their ire grew in recent years when Kennedy voted to strike down the death penalty for defendants who are mentally retarded or younger than 18 at the time of the crime.
He also wrote the court’s two major rulings in favor of gay rights. In one, he said gay and lesbian couples deserved respect and dignity, not condemnation by law. Scalia denounced his opinion as the first step toward same-sex marriage.
Despite the fiery exchanges over social issues, Kennedy has some conservative views that could loom large in the years ahead. For example, he has voted regularly against affirmative action, arguing that the government should not rely on race in making decisions. In the fall, the court will consider a challenge to voluntary school integration programs, and Kennedy could create a majority for the conservative bloc.
Last year, he voted to uphold the display of the Ten Commandments on public property. O’Connor joined a 5-4 majority to strike down such displays. Now, with Alito having replaced her, the court, with Kennedy, appears to have a majority to uphold religious displays.
The abortion issue also appears to turn on Kennedy’s vote. Though he agreed in 1992 to maintain the legal right of women to choose abortion, he also said states had considerable authority to regulate it.
Six years ago, he disagreed with O’Connor when the court struck down a Nebraska law that banned intact dilation and extraction, which opponents call “partial-birth abortion.” Kennedy called the practice “abhorrent” and similar to infanticide.
Congress then passed a federal ban on this form of abortion. It was struck down by federal courts relying on the Nebraska ruling.
This fall, the Supreme Court will take up an appeal. Kennedy, as usual, will probably hold the deciding vote.
(BEGIN TEXT OF INFOBOX)
Major decisions this session
Key Supreme Court decisions in the just-concluded 2005-2006 session, and how the justices voted:
War on terrorism
President Bush overstepped his authority when he set up special military courts to try Al Qaeda suspects without the approval of Congress, the court said in Hamdan vs. Rumsfeld. These tribunals at Guantanamo Bay lack basic standards of fairness, the 5-3 majority said.
Justice John Paul Stevens wrote the opinion and was joined by Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. dissented. Chief Justice John G. Roberts Jr. did not participate because he had ruled on the case when it was before the U.S. appeals court.
End of life
Doctors in Oregon may prescribe lethal medication for people who are terminally ill and near death, the court said in Gonzales vs. Oregon. The 6-3 ruling upheld the nation’s only “right to die” law and rejected a Bush administration order that would have stripped doctors of their license to prescribe drugs.
Kennedy wrote the opinion, joined by Stevens, Souter, Ginsburg, O’Connor and Breyer. Scalia, Thomas and Roberts dissented.
Federal environmental regulators may protect most wetlands from development if they can show that these swampy areas have some impact on the nation’s rivers and lakes. The split ruling in Rapanos vs. U.S. rejected a move by property rights advocates to sharply cut back on environmental protection.
Kennedy wrote the key concurring opinion, and Stevens, Souter, Ginsburg and Breyer sided with the government. Scalia, Roberts, Thomas and Alito would have limited the protection for wetlands.
State lawmakers have broad power to redraw the lines of electoral districts to benefit the party in power, the court said. The five-member majority rejected a charge of “partisan gerrymandering” lodged against the Texas Republicans and former House Majority Leader Tom DeLay for a mid-decade change that gave the GOP six additional seats in Congress.
Kennedy wrote the opinion in League of United Latin American Citizens vs. Perry, and Roberts, Scalia, Thomas and Alito agreed with him.
The government may not cap how much candidates spend for their campaigns, and contribution limits are illegal if they are too low, the court said in striking down a novel Vermont law. The 6-3 ruling was a defeat for liberal reformers who wanted to lessen the impact of money in politics.
Breyer wrote the opinion in Randall vs. Sorrell, and Roberts, Alito, Scalia, Kennedy and Thomas agreed with him.
Public employees do not have a free-speech right to complain about serious wrongdoing in the workplace, the court said in Garcetti vs. Ceballos. The 1st Amendment protects employees when they speak out in public as citizens, but not for internal matters, the court said in its 5-4 ruling.
Kennedy wrote for the majority, which included Roberts, Scalia, Thomas and Alito. Stevens, Souter, Ginsburg and Breyer dissented.
Graphics reporting by David Savage