Anthony Kennedy — The New Sandra Day O'Connor

With O'Connor leaving the Supreme Court, we're left with the prospect of Anthony "Sweet Mystery of Life" Kennedy being the remaining swing vote amongst the evenly-divided Justices:

Lost in last week's cacophony about the critical role of Sandra Day O'Connor as sole and exclusive swing voter on the U.S. Supreme Court was any sign of respect for the other sole and exclusive swing voter on the U.S. Supreme Court: Anthony M. Kennedy. And in case anyone else missed this subtle shift in power, Kennedy's majority opinion in today's big physician-assisted-suicide case serves as the perfect reminder of who's going to call the shots in the near future.

The 6-3 opinion in Gonzales v. Oregon—a decision upholding Oregon's physician-assisted-suicide law from attack by the Attorney General's Office—sharply outlines the court's Anthony Kennedy-shaped future. The dissenters are Antonin Scalia, Clarence Thomas, and—not surprisingly—Chief Justice John Roberts. In the majority you'll find the court's usual moderate-to-liberal lineup [ED: "moderate" - yeah, right]: John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer. The other two votes for Oregon thus come from the "swingers": O'Connor, who will (barring some stunning revelation that he dances for money in women's lingerie) soon be replaced by Samuel Alito, and Kennedy. In other words, this opinion was Kennedy's latest big chance to swing for the bleachers, and swing he does.

While it's true that O'Connor has tended to vote with the majority more frequently than Kennedy, and that she has done so in some big 5-4 decisions, it's also true that in other extremely contentious areas, it is Kennedy, not O'Connor, who has swung the court leftward. It was Kennedy who weighed in with the broad rationale of the court's liberals on a key gay-rights case; Kennedy who voted with the court's liberals to strike down the death penalty for juveniles and the mentally disabled; and Kennedy who has joined with O'Connor (and David Souter) to reaffirm the basic right [ED: Killing your child is so "basic"] of a woman to have an abortion [ED: Some Catholic, that Kennedy - he should have been excommunicated for this]. Kennedy also offended the political right when he authored a key opinion prohibiting sectarian prayer at a public-school graduation. And last term saw Kennedy voting—against O'Connor and with the court's liberals—on major cases giving local governments permission to seize private property in the interest of economic development and denying states the right to trump federal medical-marijuana laws [ED: but it's okay for states to "trump federal drug laws when those drugs are used to kill patients - yeah, real consistent there, Tony].

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My Comments:
In other words, until one of the more liberal Justices is replaced, Anthony Kennedy will continue to pull constitutional rights to engage in all manner of deviancy out of his ass [no pun intended].