As the Senate Judiciary Committee bumbles through predictable questions, predictable statements, and heads towards what certainly appears to be the predictable confirmation of Samuel Alito to the Supreme Court, there seems to be little attention paid yet to the man whose stock rises the most in this new balance of influence; Justice Anthony Kennedy.
It looks pretty likely that Samuel Alito will be confirmed to the high court, and it’s pretty clear that Alito will be, as much as we can be sure, more to the liking of Conservatives than Liberals. He will join the likes of Antonin Scalia, Clarence Thomas, and of course Chief Justice Roberts as champions of that paradigm.
On the other side, of course, are the existing voices which have sung a chorus more to the Liberal tune: Ruth Bader Ginsburg, David Souter, Stephen Breyer, and John Paul Stevens. That matches up four from the Right, against four from the Left. The tipping point on controversial issues, then, will be Justice Kennedy.
In theory, Kennedy is a little bit more to the Right than to the Left. But there is reason for concern in his opinions. As an example, regarding the rights and authority of the President under Article II of the Constitution, which bears directly on the present conflict, we may find reason for concern from Kennedy’s comments in CHENEY V. UNITED STATES DIST. COURT FOR D. C. (03-475) 542 U.S. 367 (2004), where Kennedy wrote the opinion, saying “Once executive privilege is asserted, coequal branches of the Government are set on a collision course. The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives. This inquiry places courts in the awkward position of evaluating the Executive’s claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances”, meaning that the Court may claim the right to review Presidential authority. In the case before the court, Kennedy and the majority reasoned that the “Court’s analysis of whether mandamus relief is appropriate should itself be constrained by principles similar to those we have outlined, supra, at 9—11, that limit the Court of Appeals’ use of the remedy. The panel majority, however, failed to ask this question. Instead, it labored under the mistaken assumption that the assertion of executive privilege is a necessary precondition to the Government’s separation-of-powers objections.” A mixed bag, confirming the President’s authority, while claiming the right to review that authority.
Also of interest would be Kennedy’s concurrence in ASHCROFT V. AMERICAN CIVIL LIBERTIES UNION (00-1293) 535 U.S. 564 (2002), where Kennedy sided with arguments defeating the Child Online Protection Act, placing the freedoms of pornographers ahead of the safety of children. Kennedy made the same decision again in ASHCROFT V. AMERICAN CIVIL LIBERTIES UNION (03-218) 542 U.S. 656 (2004), even to the point of arguing that because foreign pornography could still be seen with the COPA filters in place, that this constituted unfair treatment of American pornographers, since it suppressed their expression but not foreign expression.
Another indicator of the mind Of Kennedy would be the Kelo decision. In Kennedy’s concurrence of the near abolition of private property rights, Kennedy changed the meaning of the law to put all the weight on proving malice on the part of the homeowner, creating a government "right" to seize private property unless malice was proven. Kennedy sniffed “while there may be categories of cases in which the transfers are so suspicious, or the procedures employed so prone to abuse, or the purported benefits are so trivial or implausible, that courts should presume an impermissible private purpose, no such circumstances are present in this case.” One wonders if Kennedy has ever seen things from the eye of the common man.
So, while the coming confirmation of Alito is a good sign, we still need to gain a sound mind to put the Court right. I worry that the celebrity of being courted by both sides will give Kennedy an arrogance worthy of his surname.