Anthony Kennedy Now Supreme Court Decider

When it comes to who serves as Secretary of Defense, George W. Bush is the decider. When it comes to close votes on the Supreme Court, that distinction belongs to Anthony Kennedy, who has taken Sandra Day O’Connor’s place as the key swing vote.

The Supreme Court’s just-concluded 2005-2006 term was a historic one, in which two new justices, Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr., changed the court’s style and ideological balance. But by the end of the term, it was clear that the main impact of the turnover was to enhance the influence of a justice who has been at the court since 1988, 69-year-old Anthony M. Kennedy.

With the departure of centrist Justice Sandra Day O’Connor, the court is now frequently split between two four-justice liberal and conservative blocs, with Kennedy as the sole remaining swing voter. An eclectic and sometimes inscrutable moderate conservative, Kennedy repeatedly cast the decisive vote on the most polarizing issues the court faced, from President Bush’s military commissions, to the Clean Water Act, to the death penalty. He is poised to do so again next term when the court takes up the issues of abortion and school integration. “Justice Kennedy seems to be asserting himself more and seems to be relishing the role,” said Richard Lazarus, a law professor at Georgetown University who heads the school’s Supreme Court Institute. “All the justices enjoy being more significant rather than less significant, and he has certainly asserted his role as a moderating force on both sides.”

In the 17 cases during the 2005-2006 term that were decided by five-vote majorities, Kennedy was on the winning side 12 times, more than any other justice, according to figures compiled by the Supreme Court Institute. In six of those cases, Kennedy voted with the conservative bloc, made up of Roberts, Alito, Antonin Scalia and Clarence Thomas. As a result, the court upheld most of Texas’s Republican-drafted redistricting plan, restored the death penalty in Kansas, and ruled that police do not have to throw out evidence they gather in illegal no-knock searches. But four times, Kennedy, a 1988 appointee of President Ronald Reagan, defected to the liberal justices, John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

That Kennedy would emerge as the swing vote surprises no one that follows the Court. I’m not sure I understand WaPo math, however. There were 12 times where Kennedy was the deciding vote; 6 times, he voted with the conservatives and 4 times with the liberals. Using my handy dandy HP15C calculator with reverse Polish notation, I come up with “10” which, if my figures are right, means we have two cases unaccounted for.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. wolfwalker says:

    Perhaps the remaining two cases didn’t divide along the standard liberal/conservative lines? I seem to recall at least one case like that, where a combination of “conservative” and “liberal” justices made up the five-vote majority, while the dissents were also a mix of “conservatives” and “liberals.”

  2. Herb says:

    The role of “decider” should not be in the Kennedy ballpark.

    In fact. Kennedy should have been impeached long ago when he “Violated the Law Passed by Congress” and signed by the President in the Schievo Killing Case.

    Kennedy Has made himself one of the 5 “Bastards of America” by his decision to make Terrorist a part of the Geneva Convention.

    What I, and every America wants to see is the rationale for these 5 “Bastards of America” making them, Al Qaeda, eligible to the Geneva Convention.

  3. madmatt says:

    I think there were a couple of criminal cases that were rather non political….

  4. Michael says:

    What I, and every America wants to see is the rationale for these 5 �Bastards of America� making them, Al Qaeda, eligible to the Geneva Convention.

    Herb, Perhaps you should only speak for yourself, and not the rest of America. I, for one, understand the rationale behind the decision, and agree with it.

    The SC did not “make Terrorist a part of the Geneva Convention”, they simply stated that the US is bound by our obligations under that convention. I don’t see what we lose by abiding by the convention besides a lack of the warm fuzzy feeling you get knowing we’re drowning and electrocuting people. If we can survive Fascism and Communism while still maintaining our humanity, I don’t see why we should let Islamists take that away.

    We don’t have to be like them to beat them.

  5. DC Loser says:

    I’m just impressed James even knows what reverse Polish notation is.

  6. James Joyner says:

    DCL: A legacy of my misspent youth as a cadet at USMA, which at the time required even us math rocks to take a pre-engineering core curriculum.

  7. Herb says:


    If you “understand the rationale” for this decision, then you are about the only one. Your “understanding” lacks, like the Courts, indicates a total lack of common sense.

    Please tell me a common sense answer to this,

    Why should we in the US, recognize a group of terrorist who represent no country, are not a part of any army, wear no uniforms, and themselves did not sign on to the Geneva Convention, and commit outright murder of innocents.

    To do so is complete insanity and the 5 Judges who made the terrorist a part of the Geneva Convention are about as un American as one can get.

    These Judges are an illegitimate group of so called American and fully deserve to be named “The Bastards of America” throughout the country.

  8. just me says:

    I seem to recall a case where Alito was the swing in a five four decision on the death penalty.