Lazarus on Justice Kennedy
Among the issues which the Court will consider this Term are whether a woman, whose health is endangered by her pregnancy, has a constitutional right to a safe abortion, and whether the Constitution denies local school districts the authority to voluntarily integrate racially segregated schools. Supreme Court watcher Edward Lazarus highlights the pivotal--and potentially unpredictable--role that Justice Kennedy will play in these cases:
Because Kennedy found the majority's decision in Stenberg so profoundly wrong, it is very easy to imagine Kennedy providing the fifth vote (with Roberts, Alito, Antonin Scalia, and Clarence Thomas) to overturn or severely limit Stenberg, and to overturn the federal ban on partial birth abortion. Kennedy could rationalize a departure from stare decisis on the grounds that Stenberg, as a recent 5-4 decision, deserves less respect as precedent than more entrenched decisions, such as Roe.But one aspect of the pending partial-birth-abortion case may give Kennedy pause. Congress enacted the federal ban in immediate response to the Court's decision in Stenberg striking down Nebraska's very similar law. In this sense, Congress was replaying a scenario from 1989, when Congress passed a federal ban on flag burning right after the Supreme Court struck down Texas's flag burning ban in Texas v. Johnson.
At the time, Kennedy, who had provided the fifth vote in Johnson to strike down the Texas law, did not look kindly on Congress's provocative challenge to the Court's decision, a decision with which he agreed. This time around, however, Congress's analogous response to Stenberg reflects Kennedy's own views on abortion regulation.
Nevertheless, there is some chance that Kennedy will view Congress's decision to flout the Stenberg ruling, and enact a law very much like the Nebraska law the Court had just struck down, as a slap at the Court's authority and a challenge to its prowess as the nation's chief expositor of constitutional meaning.
No one is a more zealous guardian of the Court's power and reputation than Kennedy. Further, no justice takes greater pride in setting aside personal views because to do so is a necessary aspect of being a conscientious judge. Accordingly, Kennedy may see it as his institutional duty to strike down the federal partial-birth-abortion ban even though he strongly believes such a ban ought to be constitutional.
With respect to the school desegregation cases, Lazarus notes that these cases are different than affirmative action cases, and this may be sufficient to swing Justice Kennedy's vote:
[I]t just may be that the school assignment programs before the Court will strike a chord with him. The image of segregated classrooms is surely one that Kennedy finds unfortunate, and even abhorrent. If he is convinced that race-based school assignment is a necessary tool to avoid the creation of two student societies - one white, and one minority - then this may be the first race-based program he deems constitutional.