Saturday, November 05, 2005

The new moderate: Justice Kennedy

Balkinization reminds everyone that what the Supreme Court outcomes are decided by majority vote; the new Court with Alito will move to the right, not to the views of Alito, but to the new swing Justice: Kennedy (although many issues don't break down on a clean conservative to liberal line).
The 5-4 cases with O'Conner in the majority and voting will the more liberal members will now be in question. The holdings are not necessarily going to be overruled, but they are unlikely to be expanded, and slowly undermined.
Kennedy,
supports abortion rights claims a little less than O'Connor (Kennedy voted to uphold restrictions on partial birth abortion),
supports gay rights claims a bit more than O'Connor (Kennedy wrote the opinion in Lawrence),
thinks affirmative action is largely unconstitutional (Kennedy dissented in Grutter),
thinks most campaign finance regulation is unconstitutional (Kennedy dissented (in part) in McConnell) and
has been more likely to permit government endorsements of religion and state financial support for religion than O'Connor (Kennedy dissented in Mccreary County v. ACLU and joined Mitchell v. Helms).

This is not to say it doesn't matter how conservative Alito will be. Scalia himself sometimes joins with the more liberal justices to form a majority. Also, if Stevens dies within the next two years, Kennedy will move from swing onto the liberal side and Roberts, Alito, or Scalia might be the "moderate" "swing" vote. I repeat: I disdain O'Conner being called moderate simply because she was the middle vote and I predict the same will happen with Kennedy. Having one of these federalist bastards be the middle vote... ugh. Stay in there Stevens!

Here is an interview with Kennedy, he doesn't say too much.
if there's a decision people don't like, of course, we're pressured about it. I think it's unfortunate that sometimes people ascribe improper motives to judges. They don't understand the tradition. A lot of editorial writers just read the dissent, they don't read the majority opinion. The press does a fair job of reporting what we do, not a particularly good job of reporting why we do it.

He could have been talking about the recent Kelo decision here. O'Conner's dissenting view of the majority holding was more widely reported than the true opinion of the Court. The dissent's view of the majority opinion is not what is controlling. Oddly, a strong dissent can make the author look inconsistent later. Scalia dissented from Lawrence (Texas sodomy case) saying there is no way to reconcile laws against polygamy or same sex marriage and the majority opinion. However, if such as case came before the Court, he would not hesitate to claim it is obvious that Lawrence is not controlling.
Stare Decisis,
the dynamic of being bound by precedent, the so called stare decisis, is very forward-looking, because it teaches you that you will be bound by what you do. . . . You must ask yourself, to the extent that you can without being imprecise, "How will my judgment play out in the future?" And there's a lot of looking out the window in that job.

The Court has a policy derived from the Constitution that they will not give advisory opinions. That means the Congress can not simply ask the court whether a law they want to pass will be held unconstitutional. The Court also uses this principal to not decide cases where a party does not have "Standing." The parties to the dispute must have a personal interest in the outcome. The idea is that the Court is only deciding the case before it, under the particular facts of that case. This is complete horseshit, as Kennedy makes clear. The Court take only 80-100 cases each year. They take these cases not because they care about the outcome of that particular case, or the litigants involved, they are deciding hundreds or thousands of cases at once. They are not considers just what should be done in the case, but considering future policy. Thus, I call bullshit. More bullshit:
A case is presented to us, and it's our duty and obligation to decide it, whether we want to or not.
Uh, they choose the cases they take. And, they will sometimes use Standing issues to avoid topics they would rather avoid. Remember Newdow and The Pledge of Allegiance ? Kicked out on Standing.

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