O’CONNOR’S RIGHTFUL HEIR ?
Kennedy may check the Supreme Court’s tilt toward the right.
By: Evan Thomas & Stuart Taylor Jr.
W HEN CONSERVATIVE WASHINGTON LAWYERS WHO ARGUE BEFORE THE SUPREME COURT TALK ABOUT “THE GREEN -HOUSE EFFECT.” THEY DON’T MEAN GLOBAL WARMING. The Greenhouse in question is Linda Greenhouse, the longtime and esteemed Supreme Court reporter for The New York Times. The “effect” is to subtly push Supreme Court justices to the left. Unless a jurist comes to the court with very strongly held, or even fixed, conservative views, there is a tendency to be seduced by the liberal legal establishment that dominates at elite law schools like Harvard and Yale . Those schools produce a disproportionate number of the law clerks who generally draft opinions for the justices, as well as the sort of professor routinely tapped as a source by Greenhouse, who is regarded as a legal scholar in her own right.
That, at least, is the vew of conservatives like U.S. Court of Appeals Judge Laurence Silherman, who popularized the term some years ago. The chief “victim” of the Greenhouse Effect is usually said to be Justice Anthony Kennedy, who has drifted to the left since his appointment almost two decades ago. With the departure of Justice Sandra Day O’Connor from the Supreme Court, Kennedy is seen by most liberals and status-quo devotees as the remaining swing vote, a check on the court’s right-ward tilt as more justices are appointed by Republican presidents.
Kennedy’s linchpin role was on display last week, when he wrote the majority opinion in a closely watched case. By a 6-to-3 vote, the court rejected the Bush Justice Department’s effort to block a controversial Oregon law that allows physicians to assist the suicide of terminally ill patients. About 30 people a year avail themselves of Oregon’s “right to die” law, obtaining a prescription for lethal dose of drugs. Former aftorney general John Asheroft intervened to stop the practice, but the Supreme Court ruled last week that Ashcroft had over-stepped his authority. Conservatives took some consolation in the vote of Chief Justice John Roberts. In his first significant decision since his confirmation, he joined in dissent with the court’s right wing, Justices Clarence Thomas and Antonin Scalia. If, as expected, Judge Samuel Auto is confirmed, conservatives think they will have a reasonably reliable fourth vote. But Kennedy remains at best a wild card; in some important arenas, most notably abortion and gay rights, he has been a winning vote for the court’s liberal camp.
Kennedy has “evolved,” say the liberals—much like other GOP-appointed justices before him, such as the late Harry Blackmun. Conservative lawyers scoff (though rarely on the record, lest they have to argue before Kennedy) that the justice is squishy and vainglorious, too worried about what the headlines will say about him.
Othe r hard-liners regard him as a traitor. He was chosen by Ronald Reagan in 1987 after fiery conservative Robert Bork was rejected by the Democratic controlled Senate and Reagan’s next choice, Judge Douglas Ginsburg, dropped out after he admitted to having smoked marijuana as a Harvard law professor. At first Kennedy seemed to be a solid conservative, siding with the state in criminal-rights cases. Some even began calling him “Bork without the beard” and predicting that he’d be chief justice one day. But then in 1992, Kennedy joined the majority opinion upholding a woman’s right to abortion. Just before he took the bench the day of the decision, Kennedy told a reporter, “Sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own towline.” Then he excused himself to “brood.” No one was quite sure what he meant by that mixed metaphor, but it was seen as a bad sign for conservatives, who figured they could no longer count on him. Indeed, Kennedy went on to author a landmark 2003 decision that established, for the first time, constitutional protection for homosexual sodomy. “Gay people are entitled to respect for their private lives,” wrote Kennedy. “The state cannot demean their existence or control their destiny.”
Kennedy is by no means always or even often on the left. He has dissented, for instance, from decisions upholding affirmative action. But for the time being, he may be the one justice standing between conservatives and a predictable Supreme Court majority.
January 30, 2006 (Pg. 38)
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