Wednesday, March 01, 2006

Introducing the Kennedy Court

The hyper-partisan Texas redistricting map is coming to the high Court. I think that partisan gerrymandering is one of the great evils of modern American politics, and would love to see the Court take a stand on it. Will it? Tough question.

Again, let's assume that Alito and Roberts vote conservative, giving us our standard 4-4 liberal/conservative split. The wild card, then, is Justice Kennedy. In this TMV post I touched on my sentiment that Kennedy will drift slightly to the left over the next few years and occupy O'Connor's spot as designated swing vote (most people would probably have placed Kennedy slightly to the right of O'Connor previously). I believe that in past cases, Kennedy has signaled severe discomfort with partisan redistricting, but has expressed concern that there is no workable standard for remedying the problem. He's had several years to think of one, and I think he really wants to lay down the law here. I think that Kennedy's normal cautious, centrist mentality can be overcome (and hard) if he's presented with a case that nakedly violates his sense of justice or fairness. That explains how a judge widely considered to be moderate could write such sweeping and uplifting opinions in Lawrence v. Texas, Roper v. Simmons, Lee v. Weisman, and Romer v. Evans (to name a few). This topic, by my reckoning, seems to be elucidating the same sort of visceral reaction in Justice Kennedy that those cases did. Couple that with just how blatant the partisan interest was here, and the Justice Department's political hacks overruling its career appointees, and I think it might push Kennedy over the edge.

Many legal wags named the previous manifestation of the Court "The O'Connor Court," because of her critical role as the pivotal "5th vote" in so many cases. Kennedy seems poised to fill her role. And this case will be highly indicative of what that means for legal doctrine and the nation as a whole.


Ampersand said...

Unfortunately, the questioning didn't support your optimism regarding Kennedy.

Frankly, I have a hard time believing that someone who voted for Bush v. Gore would ever object to any corruption or cheating so long as it helped the Republican party. Kennedy isn't as far-right as some of his colleagues on the court, but at heart he's nothing but a Republican partisan.

I hope to be surprised - I'd love it if you turned out to be right on this one. But I don't think you will.

David Schraub said...

I think whatever loyalty Kennedy had to the GOP as a party has been breached by them turning him into the anti-Christ in the wake of Lawrence and Roper. And while I think Bush v. Gore was wildly, clearly wrong, it's hard to call Kennedy "at heart...nothing but a Republican partisan" given his votes in the above cases, plus Casey, Lee v. Weisman, Romer v. Evans, et al. I don't agree with Kennedy on a lot of cases, but for the most part I'm convinced of his integrity as a judge--one case shouldn't be enough to contramand that.

The questioning was disappointing, but the line I got from other coverage (it wasn't in the S P-I article you linked to) was that Kennedy might have been persuaded that the racial factors in this redistricting pushed it over the line (in other words, partisan gerrymandering by itself, maybe okay, mixed with cracking the power of racial minorities, not okay).

Ampersand said...

It's not that I think Kennedy won't disagree with his party's ideology on various issues - clearly, he will, and I'm grateful for that. But Bush v Gore, I think, demonstrated that when it comes to the specific issue of bending the law to help Republicans, Kennedy's a partisan hack.

Maybe I'm wrong. It would be nice to be wrong, and I'm hoping to be wrong.

In general, I'd agree with you about not judging a Justice by just one case. BvG, however, was so astoundingly anti-democracy, so hypocritical and so inexcusable, that I make an exception to the rule for it. I think all of their careers should be forever tarred by that one case.