With Sandra Day O'Connor's retirement, there is a new swing justice in town....So Cohen is hoping for outcome-oriented decisionmaking from the newly empowered justice. Nice of him to come right out and say it. He gives little credit to Kennedy's commitment to First Amendment rights, which has, I think, been the most distinctive aspect of his role on the Court.
Looking back at the 5-to-4 decisions in which Justice O'Connor was in the majority suggests that having Justice Kennedy replace her in the center could mean major changes. She provided the fifth vote to reject a constitutional challenge to the McCain-Feingold campaign finance law, while he dissented. She was the fifth vote to uphold affirmative action in public university admissions, while he again dissented. Although both justices have supported Roe, he has voted to uphold greater restrictions on abortion rights....
[T]here are signs that his views are evolving. Last year, he wrote the decision ending the juvenile death penalty, reversing his 1989 position. And he has become an increasingly strong advocate for taking international law into account, to the distress of many conservatives.
He is also someone who cares what other people think. The Supreme Court scuttlebutt has always been that he is open to persuasion by colleagues, and even law clerks. It is sometimes said condescendingly, but there is something refreshing about a justice who genuinely seems to have an open mind. When he switched sides on the juvenile death penalty, he wrote a thoughtful opinion noting both that the American people had turned against it and that "the overwhelming weight of international opinion" opposed it.
Perhaps most important, it is not yet clear how Justice Kennedy will be changed by his vastly expanded influence. Justice O'Connor was very aware of her position as the swing justice, and it made her deeply aware of the impact her votes had on real people's lives. Justice Kennedy may inherit that mantle of concern. It is one thing to argue in dissent that campaign finance laws violate the First Amendment. It is quite another to cast the vote that prevents a nation weary of lobbying scandals from trying to clean up its elections.
It was often said that the Rehnquist Court was really the O'Connor Court. In the same way, the Roberts Court could turn out to be the Kennedy Court. It is too early to know what that would mean — even Justice Kennedy probably couldn't say. But it is likely that rather than pleasing any ideology or interest group, the court will be guided by one man's sometimes idiosyncratic, but evidently quite sincere, attempt to reach the right result.
I assume Kennedy will be changed by his new position of power, but I hope he uses it to bring principle and clarity to the law.