Wednesday, July 4, 2007
It is often said that Justice Kennedy likes being the swing justice, as did Justice O'Connor, becauase, in addition to giving him power, it gets him press. And that seems right to me. But you wonder about how he feels about some of the articles. Tom mentions this article by Linda Greenhouse on Kennedy, but to me he comes across as a lightweight who is manipulated by the masterful Justice Stevens (who by the way comes across as a little unprincipled):
It takes four votes to accept a case, and three members of the liberal bloc — Justices Stephen G. Breyer, David H. Souter and Ruth Bader Ginsburg — said at the time [of an earlier petition for cert] that they wanted to hear these cases. Notably absent from that group was Justice John Paul Stevens, who wrote the majority opinions for the court in 2004 and 2006 that upheld the detainees’ claims to a modicum of judicial process.
Instead of giving his vote to the three, Justice Stevens joined Justice Kennedy in a one-paragraph statement “respecting the denial.” It was “appropriate” to deny the appeals at this point, they said, because the detainees had not yet availed themselves of the appeal procedure provided by the Detainee Treatment Act of 2005. The court’s door remained open for the future, they hinted.
Since Justice Stevens had the power at that moment to cast a fourth vote for immediate review, he clearly had something else in mind by joining Justice Kennedy instead. The most plausible explanation is that this canny tactician and strategist, who had managed to win Justice Kennedy’s vote for his two earlier Guantánamo opinions, knew better than to risk losing that support by pushing his colleague too far, too fast. There was no point in granting a case to which Justice Kennedy was not yet ready to give favorable consideration.