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The Supreme Court's Enigmatic Decider-in-Chief

The Supreme Court's Enigmatic Decider-in-Chief

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While we’re all riveted to the hostage drama in the House of Representatives, there’s another lopsided showdown shaping up in more-or-less plain sight that puts some basic values and settled law up for grabs. Like the Capitol Hill farce, this one has a tiny band of fanatics determined to trash three generations of evolving American consensus, and our collective fate somehow rests in the hands of one enigmatic figure.

The arena is the United States Supreme Court, which began its 2013-14 session last week and starts to hear arguments this coming Tuesday. The issues up for grabs, Georgia State law prof Eric Segall writes in this oped in today’s Los Angeles Times, are campaign finance reform, abortion and separation of church and state. Slate legal affairs reporter Dahlia Lithwick, commenting last week on the upcoming court season (she adds a fourth issue, affirmative action), predicts “the final demise of the O’Connor legacy,” referring to the centrist record of the court’s longtime swing vote, Justice Sandra Day O’Connor.

Three cases on the court’s docket, Segall writes, have the potential to transform our legal landscape—drastically expand states’ power to limit access to abortion, virtually eliminate restrictions on direct campaign contributions and—get this—throw door wide open for government entities to endorse particular (usually Christian) sectarian religions for invocations, prayers and so on, so long as the measures aren’t “coercive.”

The choices before the court are so stark, and the court’s divisions so sharp-edged, that the direction the country will take in all three areas will probably be left entirely up to one person, Justice Anthony Kennedy, the Reagan appointee who became the court’s swing vote after the 2005 retirement of Sandra Day O’Connor. In the vast majority of politically charged cases the court’s conservative and liberal blocs vote predictably and the decision goes to the justice in the middle who holds the swing vote.

Ironically, Kennedy took a whack at the legitimacy of his own role, presumably unintentionally, during a lecture last week at the University of Pennsylvania. Here’s how the Associated Press quoted him:

Kennedy inherited the swing position after Sandra Day O’Connor retired in 2005 and was replaced by Samuel Alito. Previously Kennedy had been firmly in the conservative bloc, and his sudden relocation to the middle meant the court as a whole had moved sharply to the right.

Since then, charged 5-4 decisions have found Kennedy voting with the majority between 75% and 94% of the time. In 63% of those cases—nearly two-thirds—he’s sided with the conservatives. O’Connor started out in the conservative wing but moved leftward and came to be seen by liberals as the court’s moderating influence.

The National Journal’s Brian Resnick had this snarky but deadly accurate rejoinder to Kennedy’s Pennsylvania remarks:

Here’s how Lithwick summed up the church-state separation case on the docket, Greece v. Galloway:

Written by

J.J. Goldberg

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The Supreme Court's Enigmatic Decider-in-Chief

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