Opponents to the nomination of Samuel Alito to the U.S. Supreme Court are already busy trying to convince the public that his confirmation must be resisted to avoid the emergence of a conservative court majority.
Such alarms ignore both math and history. At a minimum, they are overwrought and premature.
Alito, should he replace Justice Sandra Day O’Connor (often described as the court’s swing vote), wouldn’t necessarily become the deciding vote on future contentious cases. In recent years, there has never been a solid and predictable conservative majority on the court; Alito’s confirmation, should it occur, wouldn’t create one.
In fact, if there is likely to be a new swing vote on the court, it is Justice Anthony Kennedy. Kennedy, who was appointed in the second Reagan term, has proven to be every bit as unpredictable as O’Connor. Should the court be aligned with four (more or less) liberal justices and four (more or less) conservative justices, Kennedy would emerge as the key player.
Kennedy was with the majority when the court decided an important 1992 case that modified the Roe vs. Wade abortion decision. That case (Casey vs. Planned Parenthood) established the current standard for regulating abortion. That standard will figure prominently in two new cases to be decided by the court this term: one involving partial birth abortion and the other concerning a New Hampshire statute requiring parental notification when a minor seeks an abortion.
Kennedy also was the author of two important decisions involving homosexuality. He and the court majority held that there was no “rational” basis for laws regulating sodomy in Texas or limiting the legal claims of homosexuals in Colorado.
There are those, including some justices on the Supreme Court, who think the Kennedy-authored decisions can be easily used to justify same-sex marriage. Certainly those two cases have already been cited by the Massachusetts Supreme Court in its ruling authorizing same-sex marriage.
Kennedy was in the court’s majority when it ruled earlier this year that New London, Conn., could seize private property and turn it over to another private property owner as a means of increasing tax revenue. That case set off a storm of protest across the country and produced demands that the Connecticut legislature and Congress act to nullify the effects of the court ruling.
Kennedy also was a key vote in this year’s decision by the Supreme Court to abolish the death penalty as it applies to those under the age of 18 at the time of the crime. That ruling struck down the laws of 19 states.
Conservatives on the court dissented from the decision, arguing that while the definition of “cruel and unusual punishment” may change over time, the court should look to the states and the legislatures in measuring how much standards have changed and avoid substituting its own judgment for that of the states and their juries. The dissenting justices also made the point that the jury system itself allowed for the presentation of mitigating evidence (such as age) at the sentencing phase, and thus executions of young offenders had become a rarity.
That case also highlighted another topic that has sharply divided the court: whether the court should ever cite international law, international sentiment or policy as a basis for a U.S. decision.
Justice Antonin Scalia, the late Chief Justice William Rehnquist and Justice Clarence Thomas all spoke out against the citation of international policy and practice in Supreme Court decisions.
Justice Kennedy and O’Connor have both relied on international opinion in their decisions. Kennedy did so in the Texas sodomy case and again in the case of the juvenile death penalty.
He said specifically, “It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime.”
Kennedy may or may not be right about that conclusion. The issue that divides the court is whether courts should be the institution that reads and interprets international opinion.
Alito won’t create a clear conservative court majority. That event, welcome though it would be, can’t occur until there is at least one more court vacancy.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His columns appear on Wednesday.
