Jack Balkin points out that if Alito gets confirmed, the person replacing O’Connor as the most frequent swing vote will be Justice Kennedy. So what will Justice Kennedy - the new most powerful Justice in the country - decide?
…To understand what Alito’s appointment means for constitutional doctrine, instead of focusing on Alito’s views (which one assumes are reliably conservative), one needs to focus on Kennedy’s. We know that the new median Justice supports abortion rights claims a little less than O’Connor (Kennedy voted to uphold restrictions on partial birth abortion), supports gay rights claims a bit more than O’Connor (Kennedy wrote the opinion in Lawrence), thinks affirmative action is largely unconstitutional (Kennedy dissented in Grutter), thinks most campaign finance regulation is unconstitutional (Kennedy dissented (in part) in McConnell) and has been more likely to permit government endorsements of religion and state financial support for religion than O’Connor (Kennedy dissented in Mccreary County v. ACLU and joined Mitchell v. Helms). On federalism, it’s a mixed bag: Kennedy joined Raich v. Ashcroft but dissented in the two most recent section five cases, Tennesee v. Lane and Hibbs.
Note that this will all probably be true even if Alito’s appointment is defeated and Bush needs to appoint someone else; there’s simply no way that Bush, with a Republican majority in the Senate, will nominate someone to Kennedy’s left.
Don’t get me wrong; I hope Democrats will do whatever they can to defeat the Alito nomination, for a few reasons:
* No one who thinks husband-notification laws are constitutional is fit for the Supreme Court;
* If the Democrats do defeat Alito, that would be another black eye for Bush, perhaps limiting how much damage he does in his three remaining years;
* And even if they can’t defeat Alito, the Democrats desperately need to begin having principles that they stand up for.
But no matter what happens to Alito, I think Jack is probably right about the immediate direction the Supreme Court will take. It’s Kennedy’s Court now.
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