Perry v. Schwarzenegger update and more

Perry v. Schwarzenegger is scheduled for oral argument in the Ninth Circuit one week from today, December 6. The three-judge panel, from this early vantage, looks like a good arrangement for Judge Walker's ruling, with established liberal Stephen Reinhardt of California (a Carter appointee), presumed liberal Michael Daly Hawkins of Arizona (a Clinton appointee), and presumed conservative Norman Randy Smith of Idaho (a Bush 43 appointee). Little is written about either Hawkins or Smith -- both keep a lower profile than the outspokenly leftish and frequently reversed Reinhardt -- but commentators generally expect Democratic appointees on the Ninth Circuit to be skeptics of same-sex marriage bans, so barring a major surprise this looks like a 2-1 split to uphold. We won't know until next summer, most likely, and from then it's on to the Supreme Court, unless the losing side convinces the Ninth Circuit to hear the case en banc (and in that scenario, liberals should again win the day).

Outside of the courts, there were midterm elections 27 days ago. The Republicans came back in a major way from 2008, gaining a whopping 63 seats (their largest seat gain number since 1938, and the largest for either party since the Democrats' 75-seat gain in 1948) to win control of the House of Representatives. They fell short of expectations in the Senate, though, gaining a respectable six seats but leaving the chamber at 53-47 Democratic when they were hoping to defeat Senate Majority Leader Harry Reid in Nevada, appointed Senator Michael Bennet in Colorado, Senator Patty Murray in Washington, and perhaps popular West Virginia Governor Joe Manchin. The GOP instead had easy pickups in Arkansas, Indiana, and North Dakota, and closer victories against Sen. Russ Feingold in Wisconsin and for open seats in Illinois and Pennsylvania, but fell short in critical states like Nevada and Colorado.

OVERALL NUMBERS

House before the election: 256 Democrats, 179 Republicans

House after the election: 242 Republicans, 193 Democrats

Senate before the election: 59 Democrats, 41 Republicans

Senate after the election: 53 Democrats, 47 Republicans

What happened in the House was really a two-tiered story. There were incumbent Democrats defeated because of the economy, with its 9.6% unemployment rate (the highest since the recession of the early 1980s), many of them in moderate suburban districts in the Midwest and Rust Belt, and then, more surprisingly, the Republicans also managed to dislodge some extremely entrenched veteran incumbent Democrats in conservative or GOP-trending districts. A surprising number of GOP gains this year were probably not wave year swings as in states like Illinois, Pennsylvania, New York, and Ohio, but permanent realignment steps. Among the defeated were longtime incumbents like Jim Oberstar of Minnesota, Solomon Ortiz of Texas, Rick Boucher of Virginia, John Spratt of South Carolina, Ike Skelton of Missouri, Paul Kanjorski of Pennsylvania, and Earl Pomeroy of North Dakota who had seniority and sometimes chairmanships. Some of these districts (Oberstar's Minnesota 8th, for example, or Ortiz's Texas 27th) are generally considered Democratic-leaning and may flip back, but others of these defeats seem to represent the death of a certain kind of Democrat and of a certain kind of district. The old back-slapping, pork-barreling heartland conservadem may finally be a memory.

The elections left the House more divided even than it was before, with a bulging new class of hardline anti-government, anti-spending conservatives forming the majority and a slimmed-down Democratic caucus that is arguably more liberal than ever. Such a shift is not as apparent in the Senate, where some Tea Party favorites (Marco Rubio, Rand Paul, Pat Toomey) won and others (Sharron Angle, Ken Buck, John Raese) lost. Evan Bayh and Blanche Lincoln, two conservative Democrats, are gone, but a new conservadem is in town: Joe Manchin. The Senate may thus be far more amenable to compromise, as it often is, than the House on hot-button issues like extending the Bush tax cuts. Bottom line: as budget talks near, expect major partisan fireworks in Congress, and expect serious gridlock between a rowdy Republican House and a reticent Democratic Senate. The 112th Congress is coming to a blog near you next January.

Finally, the Census results are due to be reported at the beginning of 2011, and as some of you know, redistricting is around the corner. The huge GOP gains of 2010 put Republicans in a position to draw effective gerrymanders in major prize states like Florida, Michigan, Ohio, Pennsylvania, Georgia, Texas, Wisconsin, North Carolina, and Indiana, while Illinois remains the one real opportunity for Democrats to make gains. But this might mean less than you'd think: Republicans controlled many of those states in 2001 as well and their gains are largely maxed-out in several of them (Pennsylvania, Ohio, Texas, Florida, and Michigan, at least). Meanwhile, California has finally joined the nonpartisan redistricting bandwagon, Florida's new redistricting guidelines (which bar drawing districts to favor or disfavor a political party) are being challenged in court, and partisan gridlock should make for compelling drama in places like New York, Virginia, Minnesota, Missouri, and Nevada. Stay tuned! See you all in 2011, unless I see you sooner.

On Perry v. Schwarzenegger

The case everyone and his dog is talking about these days is Perry v. Schwarzenegger, the first federal court decision ever on the subject of same-sex marriage. Here's a brief history recap: in 2000, California voters passed Proposition 22, a statute affirming a 1977 law that in the state, marriage consisted only of one man and one woman. On May 15, 2008, the California Supreme Court ruled 4-3 that these laws violated the state Constitution's guarantees of equal protection, immediately opening the floodgates for same-sex marriage to be performed anywhere in the state. All in all, some 18,000 gay or lesbian nuptials were performed through November 4, when the voters passed by a 52% to 48% margin Proposition 8, an amendment to the California Constitution again banning same-sex marriage.

On May 26, 2009, the state Supreme Court ruled that Prop 8 was indeed legally passed by public referendum and had the full force of law, though it could not invalidate those 18,000 marriages performed between May and November. Prop 8 opponents sued in federal district court -- the U.S. District Court for the Northern District of California, in the case of Perry v. Schwarzenegger -- to have the initiative overturned as violating the federal Constitution. Neither Gov. Arnold Schwarzenegger nor Atty. Gen. Jerry Brown would support Prop 8 so the defense fell on the conservative organization Protect Marriage, which had pushed Prop 8's passage in 2008. The plaintiffs, meanwhile, had star Bush v. Gore lawyers Ted Olson (from the Bush camp) and David Boies (from the Gore camp) on their side.

On Wednesday, Chief Judge Vaughn Walker issued his decision in the case and wrote what many see as a landmark opinion in favor of the plaintiffs. Indeed, his language was sweeping, broad, and unequivocal: "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to protect marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."

Walker reasoned that Prop 8 violates federal due process and equal protection guarantees of the Fourteenth Amendment. The immediate real-world effects of the decision -- allowing same-sex marriage again in California -- are unclear as Judge Walker stayed his decision until he hears arguments for and against a longer stay pending appeal to circuit court. In any case, the defendant-intervenors have already appealed to the Ninth Circuit, where a three-judge panel will eventually decide if Judge Walker's decision was correct. While Walker's decision could soon mean the return of gay marriage in California, the Ninth Circuit has jurisdiction over all five Pacific states, Nevada, Arizona, Idaho, Montana, and the territories of Guam and the Northern Mariana Islands. Thus, a circuit decision affirming Walker would mean legal same-sex marriage in fourteen states (Massachusetts, Connecticut, Vermont, New Hampshire, and Iowa already have it) and two U.S. territories plus the District of Columbia, a situation sure to prompt a grant of certiorari in the Supreme Court.

The most significant portion of Judge Walker's decision in Perry is not his ultimate judgment to overturn Prop 8, but his findings of fact, which are groundbreaking and extensive. For a Republican appointee, he bases the outcome on a litany of progressive-minded statements and findings that are sure to drive the Religious Right into a frenzy. Among his findings of fact: that individuals do not generally choose their sexual orientation, that domestic partnerships lack the social meaning associated with marriage, that Prop 8 has had a negative fiscal impact on California and local governments, that gays and lesbians have been victims of discrimination and are thus a "suspect class" for equal protection purposes, that religious beliefs against gay and lesbian relationships harm gays and lesbians, and that there is no credible evidence that children raised by gays or lesbians are adversely affected by that situation. What makes these statements so meaningful is that the Appeals Court is not tasked with challenging the District Court's findings of fact, only its conclusions of law. Therefore the Ninth Circuit panel must accept the logic upon which Walker based his decision, a foundation of reasoning that is devastating to the pro-Prop 8 side.

The findings of fact situation along with the Ninth Circuit's traditional liberal bent makes it likely, in most analyses, that Walker will be affirmed in Schwarzenegger v. Perry and that same-sex marriages will be performed throughout much of the Western United States within a year or so. Thus comes the final step -- appeal to the Supreme Court.

Some doubt that the esteemed Justices will want to take on a social and cultural hot potato like gay marriage within just two years, which would be a conservative timeframe estimate for when this case reaches the top. But if lower court decisions have already struck down same-sex marriage bans in nine states, the Supreme Court's hand will be more or less forced and the Justices will, I believe, grant certiorari to hear the case. Knowing that these social-issue cases tend to divide conservatives like Chief Justice Roberts and Justices Scalia, Thomas, and Alito from liberal-leaning Justices Ginsburg, Breyer, Sotomayor, and (we expect) Kagan, the swing vote, as in most gay rights cases, will be Justice Kennedy. At first glance, Kennedy is a moderate conservative who will be reluctant to force a new kind of social arrangement on 40 or 45 states. Indeed, one would think him inclined to issue a narrow decision along the lines of "Prop 8 is unconstitutional, but other kinds of state laws and amendments could meet the due process and equal protection requirements of the U.S. Constitution."

But as one digs deeper, a landmark liberal ruling from Kennedy on this subject seems more and more plausible. For one, he wrote the Court's opinions in Romer v. Evans (1996), invalidating a Colorado state constitutional amendment barring the passage of any anti-discrimination law for gays, and Lawrence v. Texas (2003), invalidating all state sodomy laws. He also joined Justice Ginsburg's 5-4 opinion this year in Christian Legal Society v. Martinez, upholding a law school's accept-all-comers non-discrimination policy for recognized student groups. (A student group had sought school recognition and funding despite its refusal to admit gays and several other classes of people.) Also, as legacy-minded and sensitive to the future as the 74-year-old Kennedy is, he will be keenly aware that history is on the side of same-sex marriage and that there is now a justifiable moderate case for allowing it. The presence of Ted Olson in the district court case certainly helped the plaintiffs portray their arguments as nonpartisan and non-ideological pleas for fairness and equality under the law.

But most importantly, Judge Walker's ruling was specifically tailored to appeal to Justice Kennedy, since ultimately the Supreme Court is free to invalidate the district court's findings of fact and evidence as well as conclusions of law. Walker referenced both explicitly and implicitly Kennedy's decisions in Romer and Lawrence and utilized Lawrence's due process reasoning extensively. Marriage, his opinion held, is a fundamental right that cannot be abridged without due process and purely to target a suspect or unpopular group. However, even if marriage is not a fundamental right, Walker concluded, California had no rational basis or state interest in denying it to all gay and lesbian couples and thus Prop 8 fails even the most generous standard of legal review. In Lawrence, Kennedy said that states had no rational basis in outlawing certain sexual practices between consenting adults and thus sodomy laws failed even the most generous standard of legal review. Frankly, Walker could not have written a decision more designed to attract Kennedy's affirming vote.

We still must see where Schwarzenegger v. Perry goes in the Ninth Circuit, but increasingly the feeling out there is that the tide of same-sex marriage is being greenlighted by the federal courts and that said tide is ultimately unstoppable. What few of us expected is that we'd be on the verge of a landmark Supreme Court ruling on nationwide same-sex marriage come 2012 or so, but it is now difficult to imagine the issue not resolving by then.

Financial regulation bill awaits Senate vote

To date, the Obama Presidency has been defined by a flurry, if not a blizzard, of new governmental programs, priorities, and initiatives. Many of President Obama's most substantive legislative achievements -- even classic liberal causes célèbres such as a major SCHIP (Medicaid for children) expansion, new regulations on the credit card industry, FDA oversight of the tobacco industry, or the long-awaited Matthew Shepard Hate Crimes Prevention Act -- have been largely overshadowed by the mega-laws he has championed, from economic stimulus to health care reform to far-reaching regulation of the financial sector.

Less than one month into his term, President Obama signed the American Recovery and Reinvestment Act (P.L. 111-5), composed of some $787 billion in Keynesian spending and tax cuts aimed at jump-starting a flailing economy. The results have been mixed: GDP growth is positive again and monthly jobs figures, while never stellar, have been consistently better than their January 2009 nadir. The Congressional Budget Office estimates that ARRA, or as it's better known, "the stimulus package," staved off millions of further job losses, though unemployment remains stubbornly around the 9-10% mark, far higher than any incumbent member of Congress would like.

A year later came health care reform, when in late March of this year President Obama signed the Patient Protection and Affordable Care Act (P.L. 111-148) and the Health Care and Education Reconciliation Act (P.L. 111-152), together arguably the most impactful domestic policy package since the 89th Congress approved the creation of Medicare and Medicaid in 1965. The health care laws' provisions are barely beginning to be felt, with new high-risk insurance pools, taxes on indoor tanning salons, and rescission rules taking effect during the course of this year. Most of the major items of health care reform -- the individual mandate and accompanying subsidies to purchase insurance, the new health care exchanges, a massive Medicaid coverage expansion, a tax on unearned income for families over the $250,000 mark, and much more -- hit in 2014 and are thus still distant enough propositions to the average American. The "Cadillac tax" of 40% on high-cost insurance plans takes effect in 2018 and the Medicare "donut hole" coverage gap will not be fully closed until 2020! But it is indicative of health care's massive policy scope and overwhelming media attention that another landmark change in existing law (the Student Aid and Fiscal Responsibility Act, which ends federally guaranteed private student loans effective this coming fall semester) was passed as part of the broader package almost without notice.

The third pillar of President Obama's titanic domestic policy agenda is financial regulation, or as congressional Democrats are fond of branding it, Wall Street reform. Americans are eager to never again live through a financial meltdown and taxpayer bailout on the scale of what we saw two years ago, and polls show widespread support for a heightened governmental role in day-to-day financial sector decision-making, even as those same polls show falling public confidence in Washington's general capability level. That is, it seems that most Americans feel that the federal government is overburdening itself, but decidedly don't trust Wall Street to police itself. Knowing this, the Democrats in Congress set out to craft the largest-scale financial regulation bill since the Banking Act of 1933 (better known as Glass-Steagall, which was partly repealed in 1999). On December 11, 2009, with most of the nation transfixed and polarized by the Senate's health care debate, the House of Representatives passed the Wall Street Reform and Consumer Protection Act by a vote of 223 to 202. Among many other important provisions, the bill created a new Consumer Financial Protection Agency within the federal government; at the time, that was virtually the only facet of the bill receiving much media attention or controversy.

Five months later, on May 20 of this year, the Senate approved its own financial reform package, the Restoring American Financial Stability Act, by a 59 to 39 tally (after the legislation passed a crucial 60-to-39 cloture vote). This bill generally went much further, implementing the so-called "Volcker Rule" restricting banks from making certain speculative investments not in their customers' interests and forcing commercial banks to spin off their derivatives operations. It did, however, house the new Consumer Financial Protection Bureau within the Federal Reserve instead of establishing it as an independent government agency.

Congress spent much of June reconciling these two radically different bills, attempting to preserve the Senate's tenuous 60-vote coalition (which included Republican Senators Snowe and Collins of Maine, Brown of Massachusetts, and Grassley of Iowa but excluded defiant liberal Democratic Senators Cantwell of Washington and Feingold of Wisconsin) while appeasing House moderates and New Yorkers whose constituents include the wealthy and powerful bankers and stockbrokers any financial regulation bill would inevitably target. The Senate bill was used as a template, but in the end it was watered down in some areas (Senator Lincoln's derivatives amendment rendered slightly less absolute, auto dealers exempted from the new rules, funding provided by unspent TARP "bailout" money instead of by a new tax/fee on the banks themselves) and slightly strengthened in others (the Volcker Rule more decisively applied). Additionally, the consumer protection bureau was kept in the Fed, as the Senate bill proposed.

The final version of the bill, formally called a "conference report" because it was written by the bicameral conference committee, is dubbed the Dodd-Frank Wall Street Reform and Consumer Protection Act, and despite its concessions to powerful Congressmen and certain lobbying interests, most liberals still consider it a strong piece of legislation, and nearly everyone agrees that it promises to impact how Wall Street conducts itself as much as any law written since 1933. Whether Dodd-Frank will effectively segregate certain financial instruments from others as Glass-Steagall did for over 65 years is up for debate and currently unknowable, as is the validity of optimistic claims that the new bill will prevent another financial meltdown and ensuing bailout. Objectively, the bill does not exactly speak to the possibility of future TARP-like programs, though we might assume there will be far less public support for such efforts in the future than existed in the panicked days of fall 2008.

Of course, Dodd-Frank is not yet law. It did pass the House on June 30 by a vote of 237 to 192, and the Senate plans a cloture vote tomorrow morning. With Senator Cantwell now voicing support and Senator Grassley opposed, observers expect another 60-39 vote, clearing the way for simple majority passage thereafter. President Obama hopes to sign the bill next week.

With enactment of Dodd-Frank reasonably likely in the next week or so, it is worth noting that this will be President Obama's third mega-law, after ARRA in February 2009 and PPACA/HCERA last March. Consider for a moment the major domestic policy legislative achievements of recent Presidencies. For the last President Bush, we might remember No Child Left Behind, tax cuts, and the Medicare prescription drug benefit; for President Clinton, welfare reform, SCHIP, the Family and Medical Leave Act, and balanced budget measures; for the first President Bush...um...and for President Reagan, more tax cuts and perhaps COBRA (which was a priority of congressional Democrats, not Reagan). In any of these presidencies, a law regulating credit cards or tobacco, or placing sexual orientation under the hate crimes umbrella, or reversing a Supreme Court wage discrimination decision, or massively expanding SCHIP or Americorps, or terminating taxpayer-backed private student loans, would have counted as, to paraphrase Vice President Biden upon the enactment of health care reform, a "big [. . .] deal."

Yet these are such momentous times that such laws are merely asterisks in the unfolding story of the Obama era. We instead tend to note ARRA's massive Keynesian deficit spending and tax relief, PPACA's overhaul of basic health insurance practices -- something Presidents since Truman, if not Theodore Roosevelt, have tried and failed to realize -- and an expected new rulebook for Wall Street, in addition to the nation's lingering crises of high unemployment, eye-popping debt accumulation, and a vexing war in Afghanistan. Someday, political science students will look back at the early 2010s and wonder why they were born too late to experience such history firsthand.

Comparing Justices Kennedy & O'Connor

Today's Supreme Court, like the American population at large, is deeply ideologically polarized, with four fairly reliable judicial conservatives (Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito), four fairly reliable judicial liberals (Justices John Paul Stevens, who is retiring, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor), and one man, Justice Anthony Kennedy, essentially holding the balance of American jurisprudence in his hands. Kennedy, a Reagan appointee, generally tows a moderate-to-conservative line, and is generally the crucial fifth "swing vote" in divisive or controversial cases. Ironically, Kennedy was only Reagan's third choice to succeed swing Justice Lewis Powell in 1987, and was picked only after the Senate rejected Robert Bork's nomination and second nominee Douglas Ginsburg withdrew from consideration due to revelations of past marijuana use on his part. Little did anyone suspect then that, a mere 18 years later upon the retirement of Justice Sandra Day O'Connor, herself the Court's high-profile swing vote throughout the 1990s and early 2000s, Kennedy would become the most consequential jurist in the United States.

Liberals have often, though not always, found themselves disappointed by Kennedy's rulings in recent 5-to-4 cases. Earlier this year, in Citizens United v. FEC, he provided conservatives with the needed fifth vote to strike down major portions of the McCain-Feingold Bipartisan Campaign Finance Reform Act of 2002, a highly popular law since its enactment, as unconstitutional under the First Amendment. (Restrictions on corporate and union political expenditures, he wrote in the Court opinion, are by nature restrictions on freedom of speech; Justice Stevens dissented stingingly, and congressional Democrats widely saw the ruling's inherent assertion that money equals speech as preposterous.) Last year in Ricci v. DeStefano, Kennedy invalidated the City of New Haven's decision to discard a firefighter promotion exam on the basis that it had resulted in a racially imbalanced outcome, in another controversial 5-4 decision. In 2008, he joined Justice Scalia's opinion in D.C. v. Heller, which for the first time acknowledged a federal right to firearms possession without regard to one's service in a militia. The previous year, Justice Kennedy upheld the Partial-Birth Abortion Ban Act of 2003's constitutionality, ruling with the Court's four conservatives that its prohibiting a specific abortion procedure (intact dilation and extraction) did not place an undue burden on women seeking an abortion and thus did not run afoul of the Court's major abortion precedents, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The case was Gonzales v. Carhart.

Liberals complain that Kennedy's jurisprudence represents a move to the right from Justice O'Connor's (Justice O'Connor preceding Kennedy as the Court's perceived swing vote, though Kennedy has also been considered a swing vote for the past 15 years or so). In some respects, O'Connor was definitely more a judicial liberal than Kennedy, particularly in her last decade on the Court. But in others, the data may surprise those progressive-minded individuals who think nostalgically of O'Connor's tenure and see Kennedy allying with Chief Justice Roberts more often than with any other member. On several major issues, Kennedy has managed consistently to not just frustrate, but infuriate, conservatives. In a considerable number of cases during their joint tenure on the Court, Kennedy stood to O'Connor's left, providing liberals with the fifth vote even when they could not get what they wanted from O'Connor.

Looking at their lifetime Martin-Quinn scores, the two Justices seem roughly equivalent. O'Connor's lifetime score was 0.88, placing her clearly in the moderate-conservative category. She began her service a reliable conservative vote, with a score of 1.5 for the 1981 term, but ended in the dead center of American jurisprudence, with a score of 0.08 for the 2004 term and -0.03 for the 2005 term that she did not complete. Perhaps surprisingly, Kennedy's lifetime score as of the 2008 term end was 0.8, a smidgeon to the left of O'Connor. He began as a conservative, with a score of 1.15 for the 1987 term, but at that time O'Connor was still at 1.51. During the 1990s, both Justices moved toward the center, trading year-to-year as the Court's more centrist member. For the 2008 term, Kennedy's score was 0.59, a bit below his lifetime average so far of 0.8 (we'll have to see if that holds for the 2009 term, as he has yet to make a major liberal ruling this term). So O'Connor was not necessarily less conservative than Kennedy, at least not in the aggregate. Reportedly, she was much hastier to end the Florida recount in Bush v. Gore than Kennedy, who agonized over the decision. Of course, O'Connor did have a history in Republican politics, unlike the rather apolitical Kennedy.

So the real question is: on which issues was O'Connor more conservative than Kennedy, and on which was she more liberal? Specifically, cases in which the outcome was 5-4 and the two were on opposite sides tell us a lot about how the Court has changed and will continue to change without O'Connor.

It seems clear that Kennedy as swing vote represents a rightward turn on issues of affirmative action and racial discrimination. O'Connor did join a 5-4 conservative ruling on affirmative action, Adarand Constructors v. Pena in 1995, which declared that race discrimination, even in favor of racial minorities, is subject to the judicial strict scrutiny test (which is almost always a fatal standard for government decisions; Korematsu, the first use of strict scrutiny, is one of the only examples of a government rule overcoming the strict scrutiny burden). But she also provided the fifth vote to uphold college admissions affirmative action in 2003's Grutter v. Bollinger. Kennedy dissented in this case, and he is thought to take a libertarian viewpoint on affirmative action (that the time for activist government remedies to race discrimination has passed and that such plans now run counter to the idea of an equitable and colorblind society). Affirmative action advocates should definitely worry about the prospects for a new case of this nature arriving on the Court's docket, considering Kennedy would now decide the outcome, and he is, after all, the author of the Ricci decision.

In another area, campaign finance, Kennedy's conservatism has already fundamentally changed the relevant case law. Prior to January's Citizens United decision (which, as I said, was written by Kennedy, and for the first time declared corporate political expenditures protected by the First Amendment), campaign finance reform's constitutionality rested on two prior rulings upholding the right of governments to regulate campaign spending. In Austin v. Michigan Chamber of Commerce (1990), a 6-3 decision in which O'Connor, Kennedy, and Scalia all dissented, Michigan's campaign finance law was upheld in an opinion by Justice Thurgood Marshall (joined by Justices across the spectrum, from liberals William Brennan, Harry Blackmun, and John Paul Stevens to conservative Chief William Rehnquist and moderate conservative Byron White). By 2003, O'Connor had presumably changed her mind on the subject, because in McConnell v. FEC she upheld the exact law that Citizens United gutted, the McCain-Feingold Act, as constitutional under the Austin precedent, while Kennedy dissented. Note that Kennedy's relatively laissez faire outlook on the First Amendment extends to other areas of free speech law, however, often leading him to left-leaning decisions. Kennedy provided the fifth vote to strike down Texas' flag burning statute in Texas v. Johnson (1989); O'Connor dissented. He also struck down anti-indecency provisions of the Communications Decency Act of 1996 in the 1997 Reno v. ACLU decision; O'Connor wrote a concur/dissent in that case.

On abortion, Kennedy's rulings have also been more conservative than O'Connor's, though he too supports the basic Roe precedent and wrote the Solomonic controlling opinion in Casey with O'Connor and Justice Souter. His opinion in Gonzales v. Carhart upheld the federal law banning "partial-birth abortion," while O'Connor had joined the liberals to strike down a similar ban in Nebraska in Stenberg v. Carhart (2000). Kennedy had dissented then, in keeping with his later ruling. Despite her Republican politics, O'Connor had feminist reasons for supporting a generous interpretation of the abortion right, seeing conservative objections as imposing upon a woman's right to control her own body. Kennedy, a devout Catholic, sees abortion in a far more muddled way, and is willing to accept most restrictions on the practice.

But if the loss of O'Connor has damaged liberal positions on race discrimination, campaign finance, and abortion, it has done little in other areas. O'Connor was a strong states' rights and limits-on-Congress advocate in federalism cases, dissenting from such Court decisions as South Dakota v. Dole (1987), upholding the federal government's right to withhold highway funds from states not implementing a drinking age of 21, U.S. Term Limits, Inc. v. Thornton (1995), striking down state-imposed term limits on members of Congress as unconstitutional, Clinton v. City of New York (1998), striking down the presidential line-item veto, and Gonzales v. Raich (2005), validating Congress' right to ban cannabis even where states have allowed its usage (e.g. medicinal marijuana). She also dissented from the highly controversial Kelo v. City of New London decision in 2005, which declared that governments can use eminent domain under the Fifth Amendment to take private property not just for government/publicly financed use, but for private economic development as well.

Kennedy, on the other hand, voted with the majority, or himself constituted the crucial fifth vote, to strike down term limits and the line-item veto, uphold federal supremacy in cannabis laws, and allow this use of eminent domain. Kennedy voted with O'Connor to rein in Congress in such cases as United States v. Lopez (1995), Printz v. United States (1997), and United States v. Morrison (2000), but he is hardly the committed federalist O'Connor appeared to be. In the 1995 case Vernonia School District 47J v. Acton, Kennedy voted with five other Justices to approve a school district's random drug testing policy; O'Connor dissented, along with Justices Stevens and Souter. While some have characterized Kennedy as more "libertarian" than the public opinion-minded O'Connor, he has been to some degree more willing than her, and perhaps less willing than the Court's liberals, to favor federal over state power, Congress over the President, and local authorities over miffed private citizens. Last year, his respect for federal supremacy led him to dissent in Cuomo v. Clearing House Association, when the Court's four liberals were joined by the solidly conservative (but independent-minded) Justice Scalia in ruling that states may enforce their own regulations against federal financial institutions. But in general, Kennedy's attitudes about federalism have proven more beneficial for liberal (or at least Democratic) causes than O'Connor's, though one could argue that most liberals would have preferred to see the O'Connor-Rehnquist-Thomas position prevail in Raich.

Criminal sentencing is another major constitutional area in which Kennedy's recent importance has been good for liberal jurisprudence. While most assume he supports the death penalty from a macro standpoint, his position, as on abortion, is rather muddled due to the intersection of his personal Catholicism with his worldly legal approach. Kennedy has been quite willing, in fact, to minimize the use of capital punishment in recent years. O'Connor, Kennedy, and the four liberals (at the time, Stevens, Souter, Ginsburg, and Breyer) formed a 6-3 majority against executing the mentally handicapped in Atkins v. Virginia (2002). But three years later, when Kennedy and the liberals ended executions for juvenile killers in Roper v. Simmons, the vote was 5-4; O'Connor dissented from this, the most significant limit to date on death sentencing. O'Connor herself was no hardliner on the death penalty, having supported restrictions in Ford v. Wainwright (1986), which struck down executions for the insane, and Atkins, but this case was a step too far for her even as she was growing more liberal by the year. Many think that Kennedy's skepticism toward capital punishment is relatively new, since his Roper opinion directly overruled the Stanford v. Kentucky precedent of 1989 (in that case, Kennedy had joined Scalia, Rehnquist, and White to uphold the constitutionality of executing murderers who had committed their crimes at age 16 or 17; O'Connor had concurred).

In 2008, Kennedy restricted capital punishment even further in Kennedy v. Louisiana. This 5-4 decision ruled that Louisiana's death penalty statute for rape cases was, like those other applications of capital punishment, cruel and unusual, and that death sentences could not be imposed on non-homicide offenders where death was not intended and did not result (with the obvious exception of crimes against the state, like espionage and treason, which are exceedingly rare). Interestingly, Kennedy would upset the same liberals who had joined him in that case just a few days later with the pro-gun Heller ruling. This year, Kennedy, Roberts, and the liberals struck down life imprisonment without parole for non-homicide juvenile offenders in Graham v. Florida (Roberts, a staunch conservative, concurred in the judgment but disagreed with the other five that this rule should apply in general). If liberals seek to eventually abolish the death penalty as most other developed democracies already have, they will likely continue to rely on Kennedy's chipping-away approach.

Kennedy may be liberal on criminal sentencing, whether the question involves capital punishment or life imprisonment, but he is more conservative on traditional Miranda / rights of the accused cases, giving conservatives the needed fifth vote to narrowly define defendants' procedural rights in Montejo v. Louisiana (last year) and Berghuis v. Thompkins (this year), the recent case that controversially declared that the right to remain silent does not exist unless specifically invoked (that is, a suspect cannot simply keep his mouth shut and assume that the police will end the interrogation). He has, however, enraged the John Yoo/Dick Cheney crowd by joining liberals to grant accused enemy combatants the right to challenge their detentions at Guantánamo Bay in U.S. courts (Boumediene v. Bush, 2008); and not long after O'Connor's departure in 2006, Kennedy joined Souter's majority opinion in the Fourth Amendment case Georgia v. Randolph, which asserted that, without a warrant, the police cannot search a suspect's home if one occupant consents and the other objects.

Kennedy's liberalism on gay rights is the final important way in which his status as swing vote has been less than deleterious to progressive interests. Both Kennedy and O'Connor did side with the Boy Scouts' anti-gay discrimination policy in the controversial Boy Scouts of America v. Dale (2000) case, but struck down government discrimination against gays in Romer v. Evans (1996), which invalidated Colorado's constitutional provision preventing the state from passing any anti-discrimination law in favor of gays, and of course Lawrence v. Texas (2003), striking down all existing sodomy laws as unconstitutional infringements of due process. Presumably Kennedy and O'Connor distinguished public from private discrimination, explaining their votes in Dale; when laws were involved, both took a tolerant stance toward homosexuality and a hard line against government-sanctioned discrimination. O'Connor, however, was a bit more conservative about gay rights than the internationally minded and younger Kennedy, who spends each summer with his foreign counterparts at an annual judicial conference in Austria. O'Connor did not travel as frequently as Kennedy when she was on the Court, nor did she take as much interest in foreign law.

While she later sided with the gay rights movement in Romer and Lawrence, these represented a change in mindset for O'Connor, who had voted with the others in the 5-4 Bowers v. Hardwick (1986) majority upholding Georgia's sodomy statute. Lawrence directly overruled Bowers, which is why O'Connor concurred but did not join Kennedy's sweeping opinion declaring that, in general, laws relating to private, consensual sexual behavior do not survive the rational basis test. O'Connor's concurrence stated that she stood by Bowers as precedent, but that in this case the Texas law violated equal protection. Ironically, had Kennedy chosen equal protection instead of due process to justify the ruling, he would have paved the way for nationwide same-sex marriage, a cause to which he is probably somewhat more sympathetic than O'Connor was.

So is Kennedy better or worse from a liberal standpoint than O'Connor? On affirmative action, abortion, and campaign finance, definitely worse, as O'Connor hewed closely to the public's moderate-to-liberal consensus on these issues while Kennedy takes a more conservative-minded libertarian's view on all three. It is also plausible that O'Connor would have sought narrower, more centrist decisions in recent landmark conservative rulings such as Heller. But on federalism, gay rights, congressional authority (in separation of powers disputes and federal-state clashes), and some key areas of criminal law (notably foreign detainees' habeas rights and criminal sentencing), he has proven more progressive than O'Connor, often when O'Connor has sought to respect or defer to public opinion. Kennedy cares far less for public opinion and will champion the causes of unpopular people, be they alleged terrorists, death row inmates, gays, or Congressmen, if he sees fit; that attitude does result in more conservative thinking, too, when he sides with corporate donors over reformers like Senators McCain and Feingold.

In sum, liberals should hope that Kennedy, now nearing his 74th birthday, does not retire during a Republican Presidency as he would probably like to do; although he has sided with his conservative colleagues about two out of every three times in close decisions, a GOP-appointed replacement would likely be as staunch an ideologue as O'Connor's successor, the doctrinaire conservative Alito, and would represent a serious step back for upholding major federal regulations, limiting application of capital punishment and other severe criminal sentences, ending anti-gay discrimination, and permitting women (and gays) to decide how to use their own bodies. It will be interesting to see how (if at all) Elena Kagan influences Kennedy once she is confirmed to the Court, which presumably will happen before the start of the 2010 term.