William Rusher

It must be fun to be Justice Anthony Kennedy. You show up for a conference at the Supreme Court and almost always find that four of your colleagues (Ruth Bader Ginsburg, David Souter, Stephen Breyer and John Paul Stevens) are lined up on the liberal side of every ideological issue, while the other four (John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas) are on the conservative side. So all you have to do is make up your mind, and presto! -- your opinion becomes the supreme law of the land.

None of this is Kennedy's fault. It's pure happenstance that the Court is so evenly divided, and that his opinion carries the day. But the result is, inevitably, that the Court has come to be called "the Kennedy Court" -- which, in large part, it undeniably has been.

In the 2007-2008 term just ended, of the 11 major cases that resulted in a 5-4 split, Kennedy voted with the majority (or, in other words, provided the winning vote) in seven of them. Of these, four had highly ideological features. One declared the death penalty unconstitutional as punishment for the rape of a child, and another ruled that Guantanamo Bay detainees have a constitutional right to go to federal court to challenge their detention -- both being victories for the liberal view. One of the other two held that the Second Amendment protects an individual's right to own a gun for personal use, and the other knocked out as unconstitutional a law allowing opponents of self-financed candidates to receive larger contributions -- both triumphs for a conservative perspective. So, whatever else he is, Kennedy is no knee-jerk liberal or conservative -- he can swing either way.

There were other 5-4 decisions with arguably ideological implications -- for example, a ruling that an illegal immigrant may withdraw an agreement to leave the country voluntarily and still appeal a deportation order. In that case, Kennedy again joined the liberal foursome. But, in general, the most that can be said of him is that his tilt, if there is one, is unpredictable.

And that, of course, is precisely why the victory of John McCain or Barack Obama in the coming presidential election is bound to determine the direction of the Court in critical ways. At least two justices, Stevens at 88 and Ginsburg at 75, are likely to retire before long, and both are liberals. If either is replaced by a conservative, the Court's complexion will shift markedly to the right. If not, or if a conservative retires and is replaced with a liberal, the swing will be as sharp in the other direction.


William Rusher

William Rusher is a Distinguished Fellow of the Claremont Institute for the Study of Statesmanship and Political Philosophy and author of How to Win Arguments .

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