Interesting late-breaking news tonight out of Washington. Associate Justice Anthony Kennedy has apparently agreed to grant an emergency stay to Florida death row inmate Clarence Hill, who had been scheduled to die by lethal injection at 6 p.m. tonight. According to the AP,
the stay might be only a temporary one so that justices can review more facts about the case.
As a Reagan appointee, Anthony Kennedy was once considered a solidly conservative jurist. And he's amassed a conservative voting record over the years, voting with his more right-winged colleagues in cases like Bush v. Gore in 2000. But recent actions, like the one earlier tonight, raises an interesting question: Is Justice Kennedy openly drifting leftward? And if so, what does it mean for the direction of the Supreme Court under a new generation of wingnuts like Roberts and Alito?
To be clear, Justice Kennedy has never exactly been a poster boy for the religious right or the more extremist elements of the conservative movement. In 1992, he cast a decisive vote in
Planned Parenthood v. Casey that preserved
Roe v. Wade and woman's right to choose. Over a decade later, personal documents from the late justice Harry Blackmun revealed that Kennedy had nearly voted with his conservative colleagues in that instance. So I get the sense that Kennedy has always had a conscience about the implications of his decisions.
There was also some talk during the 1990s that Kennedy could be a compromise candidate for Chief Justice--at the time, he was conservative enough to placate Republicans, and yet not objectionable to Democrats in the same way that Justices Scalia or Thomas would have been. But in the early 2000s, that talk stopped as Kennedy reluctantly aligned with his more liberal colleagues.
Over the years, Kennedy has drifed leftward on a number of issues, most noticably, gay rights. In 1996, he authored the court's majority opinion in Romer v. Evans invalidating Colorado's Amendment 2 that banned nondiscrimination on the basis of sexual orientation. Seven years later, Kennedy authored a more sweeping opinion in Lawrence v. Texas, invalidating anti-sodomy laws that had been previously upheld by the court in Bowers. v. Hardwick in 1986. Most court observers had predicted that the Lawrence court would overturn Bowers, but were surprised by the sweeping nature of Kennedy's opinion. Not only did Kennedy conclude that the Texas statute was wrong, but he also struck down all adult anti-sodomy laws. Conservatives were frustrated by Kennedy's use of quotes from international law in his decision.
In 2005, Kennedy again departed from conservatives in two controversial cases. In April, he refused to grant an emergency stay in the Terri Schiavo tragedy, leading to calls from extremists for his impeachment. In June of that year, conservatives again condemned Kennedy for voting with his more liberal colleagues to uphold eminent domain in the case of Kelo v. New London. After Chief Justice William Rehnquist's death in September, there was virtually no talk of making the centrist Kennedy chief justice.
So I have to ask . . . what is going on here? Is Kennedy's increasing leftward tilt reflective of his low-key approach to judicial decision-making? Or does he feel the need to balance the extremist ideology of his conservative colleagues? With O'Connor's retirement likely in the next few days or weeks, it seems to me like Kennedy is positioning himself to be the new O'Connor and the only swing vote on the court. It's sad to me that we have justices who are so set in their ways that one can predict with a good deal of accuracy what their eventual decisions will be before a case is even argued.