usmarine0352_2005
member
- Joined
- Oct 21, 2005
- Messages
- 2,796
http://www.startribune.com/nation/22493344.html?page=2&c=y
Kennedy plays pivotal role in Supreme Court's direction
In two of the most significant decisions in the court's just-ended term, the decisions of Associate Justice Anthony Kennedy, above, proved to be more crucial than those of Chief Justice John Roberts, right.
By LINDA GREENHOUSE, New York Times
Last update: June 28, 2008 - 10:32 PM
WASHINGTON
It was not last year's spectacularly divided Supreme Court. The term that ended Thursday lacked last term's gory display of 5-4 decisions, with only 11 cases out of 67 decided this time by one-vote margins. ¶ Neither was it the Roberts court. Although Chief Justice John Roberts Jr. was in the majority in 90 percent of the decisions, more than any other member of the court, the more liberal justices won their share of the high-profile cases. The rulings granting the Guantanamo detainees access to federal court and rejecting capital punishment for those who rape children were issued over the dissent of the chief justice. ¶ Nor was it a court in repose. Just less than 30 percent of the cases were decided without dissent, compared with just more than 40 percent in the term before, and just over half in 2005-06.
In the case for which history may ultimately remember the term -- the decision interpreting the Second Amendment to protect the right to own a gun for private use -- the court's conservative bloc won a stunning, if narrow, victory. As in the Guantanamo decision, the crucial vote in the Second Amendment case was cast by Justice Anthony Kennedy. ¶ So if the Roberts court in its third term -- one that left a complicated and, to some extent, blurred imprint -- were to be summed up in a sound bite, it would be this: It was, once again, Kennedy's court.
Kennedy, who marked his 20th anniversary on the court in February, did not compile quite the pitch-perfect voting record in this term that he did in the last, when he dissented only twice in 68 decisions and voted with the majority in all 24 of the cases decided by votes of 5-4. This term, Kennedy dissented 10 times (compared with the chief justice's seven), including in four of the 5-4 decisions.
And his vote was not always as essential. Two of the major decisions of the term, in which the court upheld Kentucky's method of execution by lethal injection and Indiana's law requiring voters to produce photo identification at the polls, were decided by more comfortable margins of 7-2 and 6-3.
In those decisions, the justices gave some evidence of trying to find a modicum of middle ground. In both, the court found the evidence insufficient to declare the challenged practices unconstitutional, but left the door open, at least theoretically, for more fully substantiated lawsuits in the future. First principles, in other words, were not necessarily in play.
But there were no such signs of a search for middle ground in the term's signature cases, the rulings on Guantanamo and guns. The justices spoke at each other across a wide gulf of instinct and perception. In each case, the dissenters accused those in the majority of indulging in rank judicial activism.
Kennedy wrote the majority opinion in the Guantanamo case, joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. He silently joined Justice Antonin Scalia's majority opinion in the gun case, along with Chief Justice Roberts and justices Clarence Thomas and Samuel Alito Jr. Joined by the liberal justices, he wrote the 5-4 majority opinion in the case that ruled out the death penalty for child rape and in a 5-4 decision that granted additional procedural rights to immigrants facing deportation.
There is no reason to suppose that Kennedy's role will be any less important in the near future. In striking down the District of Columbia's ban on handguns, the court began writing a new chapter of constitutional law. The decision raised more questions than it answered, and it may take many more cases to flesh out how far the court intends to go to displace legislative choices for gun regulations.
