However, there is some interest to be had in the eternal swing-vote watch. Specifically, there are two clusters of cases which challenge recently settled precedents in which Kennedy was on the dissent. I've predicted that Kennedy will tact to the center to fill O'Connor's role, acting as a balancer to prevent the Court from moving too far to the left or the right--even if that means staking out more liberal positions than he did when O'Connor was the chief moderator. These cases, which pit Kennedy's previously stated ideological commitments against the stability and continuity of precedent, put that theory to the test. The first set deals with school desegregation/affirmative action:
The replacement of O'Connor with Alito may also be determinative in the Court's two key affirmative action cases: Parents Involved in Community Schools v. Seattle School District #1, No. 05-908, and Meredith v. Jefferson County Board of Education, No. 05-915.
Parents in both cases are challenging school integration guidelines that prevented their children from attending their school of choice because of their race or ethnicity. The Bush administration has intervened in the cases on the side of the parents, arguing that the guidelines involve "outright racial balancing" which is "patently unconstitutional."
The high court last visited the issue of affirmative action in 2003 when it upheld the affirmative-action admissions policy at the University of Michigan Law School, but struck down a differently constituted admissions policy at the undergraduate school. Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003). O'Connor was the key vote and voice in the law school ruling; Kennedy was in dissent. If the school districts here lose, "It would really, in the context it is before the Court, signal the end of the Brown v. Board of Education desegregation era," said Temple's Rahdert. "What's left of school desegregation are these voluntary plans that try, at the margins, to combat the tendency of having patterns of one-race schools."
This one is less interesting, because I think it is likely that Grutter can be distinguished (not that it should be, or even that it is particularly coherent too, only that it is different enough so it seems a fairly plassible dodge) and the overarching question of affirmative action will be deferred for yet another day.
But the real intriguing one is the upcoming partial birth abortion ban case:
In Gonzales v. Carhart, No. 05-380, and Gonzales v. Planned Parenthood, No. 05-1382, the Bush administration seeks to overturn rulings by the 8th and 9th circuits that struck down the federal Partial Birth Abortion Ban Act of 2003.
Every court to review the law has found it invalid, generally because it is overbroad and because it lacks an exception to protect the health of the woman -- a requirement established by a 5-4 high court decision in 2000 in Stenberg v. Carhart, 530 U.S. 914, which held that Nebraska's partial-birth abortion law was unconstitutional. O'Connor was the critical fifth vote to invalidate the law. Kennedy wrote a bitter dissent.
In enacting the federal ban, Congress explicitly found that a health exception was not necessary for this type of medical procedure.
There is no getting around the past precedent here. Kennedy was firmly on the dissent in Carhart. But it's still the law (for now), and Congress' response was basically to stick a middle finger in the eye of the court. It didn't even try to write a law consistent with the opinion. This type of challenge to the Court's supremacy is precisely the type of case where I can see Kennedy biting the bullet and voting for continuity even when his personal (and tabula rasa legal) beliefs dictate otherwise. While Lawrence might be an exception, in general, Justice Kennedy does not like to play fast and loose with precedent--and he definitely doesn't like it when Congress takes it upon itself to overturn precedents it finds disagreeable. Ultimately, I think Carhart II will be the biggest indicator of where Justice Kennedy's jurisprudence will point to for the years to come.