With her appointment in 1981 by Ronald Reagan to the U.S. Supreme Court, Sandra Day O'Connor wasted no time establishing herself as the swing vote. But with her retirement — effective with the confirmation of her successor, Samuel Alito — many Supreme Court scholars have been searching for the next anomalous swing voter. Scholars should look no further than another one of Reagan's nominations: Justice Anthony Kennedy.
Justice Kennedy has long been the silent swing voter of the Supreme Court, but his former counterpart Justice O'Connor has overshadowed his deciding votes in many important cases. She was the deciding vote in many high-profile cases such as McConnell v. FEC, which banned soft money and confirmed contribution limits in election campaigns; Grutter and Gratz v. Bollinger, which upheld the consideration of race in the admissions policies at the University of Michigan; and Lawrence v. Texas, which rendered a Texas law prohibiting sodomy between homosexuals unconstitutional.
Had Justice O'Connor been on the bench, I believe she would have been credited with the deciding vote in Gonzales v. Carhart, a recent facial challenge to the Partial-Birth Abortion Act of 2003. But this is mere speculation. For conservatives in the post-O'Connor era, the new focus is Justice Kennedy.
On Wednesday, Kennedy thrust himself into the limelight as the new swing voter. He became the deciding vote in a highly controversial court decision — the fourth case of its kind dealing with the act. The legislation is noteworthy because of the vast amount of leftist criticism it received over the lack of a safety clause permitting abortions in the interest of protecting the health of the mother. The usual conservative suspects joined Kennedy: Scalia, Thomas, Alito and Roberts.
With Justice Kennedy's deciding vote, the court upheld the act with a 5-4 vote and, by doing so, took a prodigious step toward legally banning abortions. Not only did Justice Kennedy help the conservative cause with his vote, but was also appointed by Chief Justice Roberts to write the majority opinion.
Instead of focusing on the criticisms from the left over the lack of a safety clause within the Partial-Birth Abortion Act, Kennedy centered on the grave immorality of late-term abortions. He spews rhetoric that is ubiquitous in every pro-life argument, citing "the right to life of the unborn," "respect for human life," "a future like ours" and "late-term abortion procedures being analogous to actual births." Had Justice Kennedy stopped at this juncture, there would be no question he would vote to uphold abortion restrictions in the future. However, he is careful to differentiate late-term abortions from those performed before the 12th week via a different procedure.
Given his past history, Kennedy has voted both ways on the issue, namely in cases such as Planned Parenthood v. Casey and Stenberg v. Carhar. Kennedy joined the troika (with O'Connor and Souter, all justices appointed by anti-Roe President Reagan and Bush I, respectively) in upholding Roe in the Planned Parenthood case on the basis of grievous "undue burden," a newfangled judicial test established by O'Connor in the case. That is, if a law does not impinge upon a woman's right to obtain an abortion, the government is justified through a compelling interest in limiting a woman's right to an abortion. In Stenberg v. Carhart, Kennedy reversed his position using the same judicial principle he cited to uphold Roe in Planned Parenthood: the principle of "undue burden."
Perhaps Justice Kennedy only votes conservatively in cases that deal with late-term abortions. He has showcased his lax attitude toward the principle of undue burden by upholding cases on both sides. His voting record is too nebulous and muddled by conflicting decisions for a conservative to be confident that he will uphold abortion restrictions in the future. If John Paul Stevens — currently the oldest member on the court at 87 — waits until President Bush is out of office to retire, it could exacerbate the conservative agenda's reliance upon Justice Kennedy's swing-voting style.
I have no doubt that the uphill conservative battle against the proverbial Roe case will be fought and won in the courts. In the post-O'Connor era Justice Kennedy has thrust himself into the driver's seat of the most important judicial institution in our nation. He consciously holds the cards of both the conservatives and the liberals — a position I presume he enjoys. How far will he be willing to go to help conservatives create a moratorium on legalized abortions? How closely will he adhere to precedent in the future? Much of this remains to be seen, but one thing will remain certain: When asked to consider future abortion restrictions for this era, there will likely be a close nexus between Justice Kennedy's slipshod application of "undue burden" and how the court will rule.
Ryan Berg ([email protected]) is a freshman majoring in political science.
