And So There Are Three Swing Justices : By The Political Heretic

Image courtesty of www.cardozo.yu.edu

Yesterday, the Supreme Court released its opinions concerning two controversial Ten Commandment displays - one in the Texas court yard near the capitol, and one in a Kentucky court room. The Court last heard a challenge to the Ten Commandment display in 1980, when it was struck down as an unconstitutional display in public schools, but yesterday's two rulings should come of no surprise considering the court's legal jurisprudence on religious holiday displays. Some in which the Court upheld government sponsored displays that included some religious references as a part of a more general secular message, whilst striking down those displays that exclusively dwelt on religious messages.

I am nevertheless surprised by the vote, considering that Clinton-appointee Stephen Breyer, and not Sondra Day O'Connor, provided the key swing vote in both cases. Justice O'Connor voted to strike down both displays as unconstitutional, aligning herself with the majority in the Kentucky case and the minority in the Texas case, but Mr. Breyer voted to uphold one display and strike down the other as unconstitutional.

The press considers Justices Anthony Kennedy and Sandra Day O'Connor as the key swing justices in the court. We all know of Justice O'Connor’s and Kennedy's independent streaks. O'Connor has written narrow middle-of-the-road opinions that are not designed to shift our understanding of constitutional principles. She voted to uphold one religious holiday display and strike down the other. She cast the deciding vote overturning Alabama's "moment of silence" law but left the door open for other "moment of silence" laws enacted in other states. She upheld one affirmative action program but struck down the other. She voted to strike a Texas sodomy law down as unconstitutional, but on a narrower equal protection grounds, she voted to reaffirm abortion rights whilst upholding most restrictions against them. As well, she voted to grant American war combatants some legal rights to representation, while not granting them full trial court rights.

For his part, Justice Kennedy has written broad opinions reflecting changes in legal jurisprudence. He cast the decisive vote overturning Bowers v. Hardwick to overturn the Texas sodomy statute. He broadened the meaning ot "coercion" to forbid school-sponsored prayer ceremonies at high school graduations, and then joined in Justice Steven's ruling applying same principle at high school sports events. He reversed a ruling he joined earlier and voted to strike down (as unconstitutional) the execution of convicted criminals who are mentally challenged, or minors. He wrote the "Mystery of Human Life passage" which Justice Scalis ridicules for having, in his view, no place in constitutional jurisprudence. Even when Kennedy joined in Justice O'Connor's narrow compromise ruling on American war combatants, he undermined the decision with his own concurring opinion in Rasul, opting to set an unofficial time limit on the president's war detention policies.

But yesterday's ‘Ten Commandments’ ruling proves there is a third regular swing justice in the court - Justice Breyer. The Clinton-appointee surprised almost everybody when he joined Justice O'Connor in a narrow concurrence, upholding Louisiana's state education funding program (even though it included funding for computers and other non-sectarian equipment at parochial schools), voted to give porn less Free Speech protections than other types of speech. Also, on at least two occasions, he joined in O'Connor's American war combatant policy, and just recently voted to uphold a ‘Ten Commandments’ display on narrow grounds.

Justice Breyer is proving to be the O'Connor of the left. He generally votes with his ideological partners, but every now and then aligns with those on the other side - along narrower grounds.

Just goes to show that presidents cannot plan for everything when they appoint court judges.