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In a nearly balanced Court, Kennedy tips the scales

WASHINGTON--Ever since Justice Sandra Day O'Connor retired in January, the High Court has been dubbed the Kennedy Court. Between a bloc of four conservatives facing off against four liberal-leaning members, Justice Anthony Kennedy, with his own occasionally idiosyncratic jurisprudence, may tip the balance on hot-button cases.

Seeing Justice Kennedy as the new swing vote, attorneys readying for the Supreme Court's annual term that begins this week have been plumbing nearly two decades of Kennedy opinions, searching for arguments that could persuade the justice that they have the law right.

The trick for advocates is finding how to do that.

"It is hard to think of a surefire way to reach Kennedy, because his jurisprudence does not have a coherent and consistent methodology, like Scalia's originalism or Breyer's pragmatic consequentialism," says Northwestern University law professor John McGinnis. Justice Antonin Scalia says his legal thinking is yoked to the original meaning of legal text; Justice Stephen Breyer asks how a particular outcome will affect what he regards as the broader constitutional or statutory goal.

Prof. McGinnis suggests that "the best way to appeal to Kennedy is to quote his own opinions back to him." That isn't just an appeal to the justice's "vanity, but also to their sense of continuity," he says. "The second-best is to show through amicus [friend-of-the-court] briefs or otherwise that the great and good favor the position, because Kennedy seems influenced by the establishment's views."

Mark Levy, director of appellate advocacy for Kilpatrick Stockton LLP in Washington, agrees. Justice Kennedy "is a person of broad sweep. He has an interest in the court as an institution, he has an interest in history, he's a justice who looks to foreign law when it's helpful to him," Levy says. "You'd bring in history not so much the way you would with Justice Scalia and saying, 'It's settled,' but rather, 'This is how it's developed and this is how the court will be viewed 10 or 50 or 100 years from now.'"

Several cases on the court's docket may touch conflicting strains in Justice Kennedy's jurisprudence, lawyers say. On Nov. 8, for instance, the justices are slated to hear arguments over the federal Partial-Birth Abortion Ban Act, which Congress passed in 2003 after a 5-4 Supreme Court struck down a similar state law in Nebraska. Lower federal courts have invalidated the 2003 law as contrary to the court's earlier opinion.

"Both sides have to be cognizant of the fact that \[Justice Kennedy\] wrote a strong dissent" from the 2000 decision invalidating the Nebraska law, says Duke University law professor Erwin Chemerinsky. "On the other hand, this is a federal statute to overturn a Supreme Court decision, and he has been very hostile to that" practice, Chemerinsky says. The government would be wise to raise the Kennedy dissent from the 2000 case, he suggests, while abortion-rights advocates should appeal to stare decisis, the principle of adhering to settled precedent, by citing Justice Kennedy's 1997 majority opinion striking down a federal law adopted to overturn one of the court's religion rulings.

In another test of Justice Kennedy's views, the court will decide whether public-school systems can consider a pupil's race in making school assignments, to promote classroom diversity.

In 2003, Justice Kennedy voted to strike down undergraduate- and law-school admissions systems at the University of Michigan for giving improper advantages to minority applicants. (Justice O'Connor cast the deciding vote then, joining different blocs to uphold the law school's system, but invalidating the undergraduate-admissions system.)

But in his dissent, Justice Kennedy wrote that under different circumstances, it could be acceptable to consider race to promote an ethnically diverse student body.

The Bush administration, opposing the diversity plans, cited Justice Kennedy by name 13 times in its friend-of-the-court briefs, zeroing in on his Michigan dissent. The briefs cite only one other sitting justice by name: Clarence Thomas, twice.

On the other side, Tom Goldstein, who represents the National Association of School Boards in defending the admissions systems, says he will aim to show they fit within the narrow opening Justice Kennedy left for racial classification.

Goldstein, who heads the Supreme Court practice at Akin Gump Straus Hauer Feld LLP in Washington, points to a lower-court concurrence by conservative U.S. Circuit Judge Alex Kozinski that upheld one of the challenged plans.

"We have his prot&


233; on the Ninth Circuit with a concurring opinion that was almost directed at Justice Kennedy," Goldstein says. Judge Kozinski wrote that the challenged program was unlike affirmative-action systems previously considered by the Supreme Court, and rather was "a plan that gives the American melting pot a healthy stir without benefiting or burdening any particular group."

Justice Kennedy, appointed in 1988, was President Reagan's third choice to succeed Justice Lewis Powell. The first, Judge Robert Bork, was rejected by the Democratic-controlled Senate as too ideologically extreme, while a second nominee, also a strict conservative, withdrew after damaging personal revelations. Justice Kennedy, then a federal appeals judge in California, was selected as a less-controversial conservative who could win confirmation in an election year.

Since then, Justice Kennedy has lived up to expectations, usually conservative on law-and-order cases but occasionally disappointing the right, particularly in social issues such as gay rights and abortion. More broadly, he has seen a bigger role for courts in applying the law than many conservatives would prefer and looked to international law and opinion in making ethical judgments.

"He's a judicial supremacist," says Prof. Michael Dorf of Columbia Law School, a former Kennedy clerk. According to a study of court decisions from 1994 to 2005 by University of Kentucky law professor Lori Ringhand, Justice Kennedy voted to invalidate more state and federal laws than any other justice.

In the most recent term, Justice Kennedy voted more often with the conservative bloc of Chief Justice John Roberts and Justices Scalia, Thomas and Samuel Alito than the liberal wing of Justices Breyer, John Paul Stevens, David Souter and Ruth Bader Ginsburg. But he also frustrated conservatives, for instance joining a majority that struck down President Bush's plan to create military tribunals for suspected terrorists without congressional approval.

Of course, focusing exclusively on trying to sway Justice Kennedy has its risks. "If you rely on international law and make a fairly blatant play to get Kennedy, you might have taken Justices Scalia or Thomas out of the loop," says Carter Phillips, a Sidley Austin partner with two cases on this year's high-court docket. "It's hard to write a brief to pick up a single vote, because at the end of the day, that might be all you get."

Ben Winograd contributed to this article.