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Kennedy Moves Front and Center on Court

THE NATION | NEWS ANALYSIS

July 02, 2006|David G. Savage | Times Staff Writer

WASHINGTON — John G. Roberts Jr. may be the new chief justice, but the Supreme Court is not truly the Roberts court, at least not yet.

In the most divisive cases before the court in the term that just ended, it was Justice Anthony M. Kennedy who determined the outcome every time. In unpredictable fashion, he sided some of the time with the court's conservative bloc and some of the time with its liberals.

His influence was dramatically displayed Thursday, when the court announced that it had struck down President Bush's specially created military tribunals for suspected terrorists.

As Justices Antonin Scalia and Clarence Thomas read their dissenting opinions in court that day, Roberts and Samuel A. Alito Jr., Bush's other new appointee, could do no more than listen in agreement.

It was 86-year-old John Paul Stevens, the court's last World War II veteran, who read the 5-3 majority opinion. He solemnly declared that the president was "bound to comply with the rule of law" and that he could not ignore congressional mandates and long-standing U.S military rules.

He paused to note that Kennedy, seated next to him, had joined most of his opinion, creating a majority. Liberals hailed the result, and conservatives lamented it.

While the issue before the court was the balance of power in government, the drama showed how little the balance of power within the high court itself had changed. Even when Roberts and Alito side with fellow conservatives Scalia and Thomas, they need a fifth vote to prevail.

For the last decade, Justices Kennedy and Sandra Day O'Connor, both Ronald Reagan appointees, had supplied the votes that decided the court's major cases. They usually joined with the conservatives on issues of crime, the death penalty, civil rights and states' rights, but with the liberals on abortion, gay rights and school prayer.

Now, with O'Connor in retirement, Kennedy stands alone at the center.

He voted with the conservatives more often than not, but joined the liberals in several major rulings. In one closely watched environmental case, Kennedy wrote a separate, solo opinion that was decisive.

On the issue of military tribunals, Kennedy made it clear that he shared the liberals' concern about unchecked presidential power.

The Constitution created "a system where the single power of the executive is checked," he wrote. Even in a national emergency, he said, "the Constitution is best preserved by a reliance on standards tested over time and insulated from the pressure of the moment."

This does not mean that suspected terrorists cannot be tried in military tribunals, Kennedy said -- but that Congress should first debate the issue and pass a law.

Kennedy is hardly in the camp of the liberals. Just the day before, he spoke for a five-member majority that upheld the mid-decade redistricting plan engineered by former House Majority Leader Tom DeLay for Texas' seats in the U.S. House of Representatives.

The four liberals, led by Stevens, say "partisan gerrymandering" is unconstitutional. The conservatives, led by Scalia, counter that politics inevitably plays a role in the drawing of electoral districts and that there is no fair way to decide how much politics is too much.

Kennedy came down in between. He says that he finds partisan gerrymandering troubling, but that the Texas plan was not so extreme as to be unconstitutional.

Before 2003, he pointed out, the Democrats had drawn electoral districts that gave them a slim majority of seats in Congress at a time when nearly 60% of Texans were voting Republican. Measured against that map, DeLay's plan "can be seen as fairer," Kennedy said.

Developers and property-rights activists hoped a more conservative court, bolstered by Roberts and Alito, would sharply limit the Army Corps of Engineers' control over hundreds of millions of acres of wetlands. Environmentalists feared the same.

Scalia wrote an opinion to do just that, and he was joined by Roberts, Thomas and Alito. He said federal environmental protection extended only to wetlands that were part of a continuously flowing stream. This would exclude many wetlands in the middle part of the nation and nearly all of those in West, where streams are dry for much of the year.

But in this case, Kennedy refused to go along. Instead, he wrote in a separate opinion that wetlands could be protected as long as environmentalists could show that filling them or draining them would affect downstream waters.

Earlier this year, Kennedy and O'Connor thwarted the Bush administration's move to void the nation's only "right to die" law. Oregon's voters had twice approved a measure that allowed dying people to obtain a dose of lethal medication from their doctors.

Bush's first attorney general, John Ashcroft, reinterpreted the federal drug control law and said it empowered him to strip Oregon's doctors of their right to prescribe medication.

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