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The Price for Making Justice Kennedy the Top Court's Kingmaker

June 29, 2018 in Economics

By Walter Olson

Walter Olson

The throne has fallen vacant.

Anthony Kennedy is retiring after 30 years on the
Supreme Court
, and we’ll soon learn who will don his
all-but-ermined robes in resolving the social conflicts of an
oft-divided nation, from abortion to zoning.

My own personal opinion is that if someone had to reign from the
court’s swing seat, I’m glad it was Kennedy. A champion
of individual liberty and strong constitutional restraints on
government, Kennedy has been a staunch guardian of the Bill of
Rights, including both First Amendment and Second.

“Most terms he agreed with Cato’s position more than
any other justice,” writes my Cato Institute colleague Ilya
Shapiro, though usually it’s more the Californian’s
results than the reasoning he has used to get there that merit the
label of “libertarian.”

But even after a king we regard as benign steps down, we might
want to reflect whether kingship is a good thing.

Both Kennedy and O’Connor
were famously reluctant to lay down clear rules for future cases,
preferring to leave options open for the exercise of their sense of
fairness.

The court’s varied constituencies were to Kennedy as iron
shavings to a magnet. Lawyers for both sides in the partisan gerrymandering cases this year
adjusted their pitches to fit his past pronouncements. Briefs in a
2016 abortion case, reported Time, “seem to be directly aimed
at Kennedy.” Advocates in the Fisher II affirmative-action
case in 2016 spent much of oral argument trying to master
Tony-talk.

Courts themselves joined the game: The late Ninth Circuit Judge
Stephen Reinhardt was said to have crafted his opinion striking
down California’s Proposition 8 to appeal to Kennedy. Even
presidents get drawn in: Some advised Barack Obama to choose
nominees for court vacancies who might skillfully woo Mr.
Middle.

Kennedy wasn’t the first to play this role on the high
court. During the reign of his predecessor Sandra Day
O’Connor, professors Susan Estrich and Kathleen Sullivan
wrote a law-review article announced by its title to be directed at
an “audience of one” — the Arizona-born justice.
Now that Kennedy is stepping down his scepter is likely to pass to
Chief Justice John Roberts, at least assuming President
Trump’s second pick is a staunch conservative like Neil
Gorsuch.

For years, Roberts has been drifting toward the court’s
center, most famously joining the liberals to uphold as constitutional a key provision of
ObamaCare
. Last week, he sided with them to rule that cops need to get a warrant if they want extended
access to cellphone-location records
.

Court gossip suggests Roberts did not discourage Kennedy from
retiring, perhaps relishing the chance, enjoyed by neither
O’Connor …read more

Source: OP-EDS

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