August 13, 2005

What's Anthony Kennedy Up To?

In the Nation today, Kate Michelman reminds everyone that John G. Roberts, if confirmed, would help the Supreme Court put severe—possibly fatal—curbs on abortion rights, even if his vote alone wouldn't, technically, be enough to overturn Roe v. Wade. In fact, the fate of Roe itself almost becomes moot at this point, especially if Roberts can deliver a crucial conservative swing vote in Ayotte v. Planned Parenthood of Northern New England, which will come before the court this fall. I'm not sure Michelman fully explained what's at stake in this case, so the microphone goes to Jack Balkin, who discussed this a few weeks back:
The case is nominally about whether New Hampshire must include a health exception to its parental notification law, but it also involves a technical question of procedure: When challenging a newly passed abortion restriction, is it enough for plaintiffs to show that it imposes an undue burden on some class of women, or must plaintiffs show that the language of the law on its face has virtually no constitutional applications? If the latter rule applies, then almost no new abortion regulations can be halted before they take effect; instead, plaintiffs must make a series of individual challenges to specific aspects of the law that affect them personally. These as-applied challenges will take months or even years before they are finally resolved, and the remainder of the new abortion regulations will be enforceable in the interim.

That means that states could pass very stringent restrictions on abortion and as long as they had some constitutional applications, they would remain on the books for years until a series of successful as-applied challenges eventually knocked away their most blatantly unconstitutional features. That is not the same thing as overturning Roe v. Wade in these states, but its practical effect is very similar.
Roe would be as good as null and void in those states that wanted to pass further restrictions on abortion. And just to be clear: Any Democrat (or Rhode Island Republican) that votes for Roberts has pretty clearly had a hand in this.

Of course, and this is something I've wondered for awhile now, Anthony Kennedy could always surprise everyone and swing to the left in Ayotte, as well as in other, similar cases, which would preserve the Court's 5-4 majority against restrictions on abortion rights. (He's previously favored such restrictions, though he also supports Roe.) Perhaps, after all, Kennedy's getting a wee bit exasperated at all the right-wingers hurling Stalinist death threats his way—"No man, no problem"—at their annual pep rallies. Or perhaps he just wants to be the guy who saved abortion rights, even if he does have to flip-flop to do it. A while back, a Vanity Fair article on Bush v. Gore and the 2000 election, which made fabulous use of interviews with law clerks, noted that Kennedy was "known to relish the pomp and circumstance of the Supreme Court and his own, often crucial role in close cases." Well, now, a Kennedy reversal on abortion-restrictions—a reversal that boldly tumbled aside the Court's frantic charge to stampede Roe— could be just the sort of thing to get Kennedy's blood rushing, no? "Crucial role" indeed. So I wonder. On the other hand, the same Vanity Fair article had this cryptic and ominous paragraph:
[Conservatives] had never forgiven [Kennedy] for his votes to uphold abortion and gay rights, and doubted both his intelligence and his commitment to the cause. Convinced he'd strayed on abortion under the pernicious influence of a liberal law clerk—a former student of the notoriously liberal Laurence Tribe of Harvard Law School, who was representing Gore in this case—they took steps to prevent any re-occurrences. Applicants for Kennedy clerkships were now screened by a panel of right-wing stalwarts. 'The premise is that he can't think by himself, and that he can be manipulated by someone in his second year of law school," one liberal clerk explains. In 2000, as in most years, that system surrounded Kennedy with true believers, all belonging to the Federalist Society, the farm team of the legal right. "He had four very conservative, Federalist Society white guys, and if you look at the portraits of law clerks on his wall, that's true 9 times out of 10," another liberal law clerk recalls. "They were by far the least diverse group of clerks."
So maybe Kennedy's not the great white hope after all, and Roe is effectively finished. (By the way: what the fuck? What "panel of right-wing stalwarts" is "screen[ing]" applicants for Kennedy clerkships? Could this be true? So much for the independent Supreme Court...?) But then again, those white-wingers clerking for Kennedy obviously steered him into his man-on-dog vote in Lawrence vs. Texas two years back, so one can never really tell when the man's going to pop off and lurch leftwards. Or maybe he's just not as dependent on his clerks as people think. Ay, most of this is wishful thinking, no doubt, but worth considering...
-- Brad Plumer 12:00 AM || ||