And AGAIN, it’s all about Kennedy

Here’s an article a couple of weeks ago in the Sun talking about what I was talking about the week before that:

That Anthony Kennedy is probably one of the most powerful men in America right now, as a “Moderate” on the US Supreme Court. In a three week period Kennedy ruled (the others’ positions were already clear) on Guantanimo Bay detainees access to U.S. Courts, CO2 emissions regulated by the EPA, and today…partial birth abortion.

From the article:

In his 19 years on the court, Justice Kennedy has been criticized for deciding cases without an overarching judicial philosophy. As a result, his vote appears to be up for grabs from one case to the next.

I’m not sure that’s a completely fair criticism, and not that it doesn’t have an element of truth in it, but that compared to Justice O’Connor, Kennedy is a downright idealogue. If you look at the two cases of Partial Birth Abortion, and CO2 emissions, Kennedy in both cases came on the side of affirming federal authority. Neither is a “state’s rights” victory per se, but it just happens that a pro-life stance will take precedent over a state’s rights stance everytime on the conservative side of the court.

As one can tell from the decisions (for emissions controls, against the Gitmo detainees–actually deciding not to take up the case (for now)–, and for a Partial Birth Abortion ban), Kennedy can swing either way and it’s all up to him.

On a political note, the National Review Online already has a compendium of reactions from some of the leading Presidential Candidates on the Partial Birth ban.

Update: I couldn’t resist linking to this post by Coyote Blog on the ideas of “choice,” breast implants, and partial-birth abortion.

The New York Sun


SCOTUS rules on Emissions

An interesting article on the recent ruling by the Supreme Court on the Bush Administration’s ruling on carbon dioxide emissions. Apparently John Paul Stephens, et. al., believes the EPA is not doing enough.

He said a refusal to regulate could be based only on science and “reasoned justification,” adding that while the statute left the central determination to the “judgment” of the agency’s administrator, “the use of the word ‘judgment’ is not a roving license to ignore the statutory text.”

In other words, ‘judgement” is not a roving license to use your own judgement, so the court’s judgement must intervene.

Regardless of your take on the issue itself, the interesting thing in this article is the resurgence of “Federalism” that this decision represents. John Paul Stephens, long an opponent of many of the states’ rights decisions over the Rehnquist years, uses this resurgence as a weapon:

This new twist on the court’s standing doctrine may have been an essential tactic in winning the vote of Kennedy, a leader in the court’s federalism revolution of recent years. Stevens, a dissenter from the court’s states’-rights rulings and a master of court strategy, in effect managed to use federalism as a sword rather than a shield.

This illustrates clearly how the most powerful man on the Supreme Court is now undoubtedly Anthony Kennedy. He used to share the “Moderate” and tie-breaker role with Sandra Day O’Connor. Now he is THE guy.

International Herald Tribune