This court is headed to the left

Published in The Pittsburgh Tribune Review, Sunday, July 24, 2005

With, so far, only Ann Coulter stepping outside the conservative consensus and suggesting that John G. Roberts Jr., could be another David Souter, let me be the first to say that the next session of the Supreme Court will see it moving to the left.
And this prediction applies however Roberts turns out.

Even if he consistently votes with Clarence Thomas, the next session of the Supreme Court will produce more left-wing rulings than this one has done. In the short-term at least, conservatives will come to regret O'Connor's retirement. It is partly a matter of arithmetic and partly a matter of Anthony Kennedy.

The lineup on the Supreme Court for the past 11 sessions has been four liberals, three conservatives and two "moderates." You therefore cannot possibly get a conservative majority by replacing one of the moderates. You would need to replace them both or, better still, replace one or two of the liberals. It is simple math, really.

But why am I arguing that replacing one moderate -- even with a conservative -- would be a step backwards? I am not, quite, saying that. I am saying that if Roberts turns out to be everything that conservatives are hoping for, the new balance will be four liberals, four conservatives and one moderate -- and that puts Kennedy in the hot seat.

According to Ken Starr's excellent history of the post-Warren Supreme Court, O'Connor was the dominant figure on the Rehnquist Court, especially since Stephen Breyer and Ruth Bader Ginsburg joined it during the Clinton administration. O'Connor has been a key influence on Kennedy and the two of them have often delivered majorities on the court.

O'Connor, with Kennedy tagging along, infuriated conservatives with her decisions on abortion, gay rights, church and state relationships and racial quotas. On the other hand, she has been rock-steady on two fundamental conservative principles -- federalism and property rights.

When an individual has been in conflict with a state -- Lawrence v. Texas, for example -- she has often sided with the individual. But where a state has been in conflict with the federal government -- such as Gonzales v. Raich -- she has always sided with the state. In that case she proved to be more "conservative" than Antonin Scalia.

So why did O'Connor's final session on the court see her taking the minority position on two high-profile cases -- Gonzales v. Raich and Kelo v. New London?

It is interesting that she was in a conservative minority but if she was the swing vote, why was she in the minority at all? Surely swing voters are always on the winning side?

O'Connor's record over her full period on the Supreme Court, especially the last 10 years, would seem to vindicate Starr's analysis of her as the dominant figure and key swing voter. She was nearly always in the majority.

The answer is, mostly, Anthony Kennedy. (I know Scalia also defected to the left on Gonzales v. Raich, but the left would have won without him). O'Connor has been a key influence on Kennedy. And I would suggest that she has been, mostly, a positive influence.

But with her retirement imminent, he felt liberated to pursue his own instincts. And from what I have seen of his instincts so far, I don't like them.

My prediction is this: however Roberts (if confirmed) lines up, majorities in the next session of the Supreme Court will be made and broken by Anthony Kennedy. He will continue to disappoint conservatives over all the issues on which he has disappointed them in conjunction with O'Connor.

But freed from her influence he will also tend to vote with the liberals on federalism and property rights. The liberals will win all the key decisions next year, with at least five votes, with Rehnquist, Thomas, Scalia, and perhaps Roberts dissenting.

Not only that, the best that conservatives can hope for on Rehnquist's retirement is a wash -- replacing one conservative with another. And even that could go wrong.

This means that a Kennedy-made liberal majority will continue to run the court until one of the confirmed liberals -- probably Stevens or Ginsburg -- retires. And that might not be while Bush is president.

Quentin Langley, a British-based writer and commentator, lectures at Cardiff University and is international correspondent of Campaigns and Elections magazine.

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