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Justice Kennedy works on his swing

By Bill Mears
CNN Washington Bureau
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WASHINGTON (CNN) -- With the Supreme Court beginning a new term, legal observers say the man to watch is Justice Anthony Kennedy, who holds the swing vote.

Kennedy, a moderate-conservative, is in the eyes of many legal scholars the court's new power broker.

He shared the role of a swing vote with fellow centrist Sandra Day O'Connor before she retired in January. Now he carries it alone.

"The basic principle is, it's Justice Kennedy's world and you just live in it," said Thomas Goldstein, a private attorney who practices regularly before the Supreme Court, speaking tongue-in-cheek.

"Justice O'Connor, having been the most powerful woman in the world, handed the keys to him on her way out the door and said, 'Have fun.' And he took up that invitation," Goldstein said.

With four solid conservatives aligned on the right, and four liberals on the left, Kennedy, 70, is the man in the middle. As a result, his vote in contentious cases assures that his view of the law will prevail.

In the past term, Kennedy, a native of northern California, was not shy about asserting this new power.

Working within the private world of the nine justices, his was the controlling vote in cases involving a GOP-led Texas redistricting plan, Oregon's physician-assisted suicide law, workplace speech restrictions, and lethal injection for death row inmates.

'Man in the middle'

His written concurrence in appeals involving the Bush administration's detention policies for accused terrorists and development restrictions near wetlands were widely cited. They are expected to provide a legal roadmap for similar appeals in the future.

Kennedy's unpredictability has made liberals and conservatives equally nervous. But many on the right are more outspoken in their "disappointment" in the Reagan nominee, who turned 70 in July.

"Kennedy's style as the 'man in the middle' is often as a 'justice in a muddle,' " said Douglas Kmiec, a law professor at Pepperdine University, and a former lawyer in the Reagan and Bush administrations.

"He writes cryptically, as in Rapanos -- the wetlands case -- suggesting a standard of his own making that is not fully developed," he added. "In some ways, this is worse than O'Connor balancing, which at least was fully explicated."

Kennedy's moderating force has generally benefited his conservative colleagues. Seventeen cases in the past term were decided by a slim five-vote majority, and Kennedy was on the winning side in 12 of them, a higher rate than any other justice.

In six of those cases he sided with conservatives John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito. His votes kept in place nearly all of the Texas GOP congressional map, as well as the death penalty in Kansas.

In four votes, Kennedy agreed with a more liberal group of justices, including John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

With Kennedy's swing vote, for example, the court threw out planned military tribunals for suspected terrorists and ruled a home search unconstitutional because police failed to get consent from both occupants.

Conservative critics

In Washington, Kennedy's public profile has risen steadily in recent years, thanks in part to the conservatives who have criticized him. Along with other justices, Kennedy has taken conservative hits for citing foreign law in a number of rulings, including banning the death penalty for juvenile killers, and state sodomy laws for homosexuals.

The high court's refusal to intervene over Terri Schiavo also outraged many on the right. Some lawmakers have suggested Kennedy and other "judicial activists" should be impeached.

Kennedy's health has also made headlines.

A stent was inserted to clear an arterial blockage near Kennedy's heart over the Labor Day weekend after the justice experienced chest pains. The court said there was no heart damage, and he was released from the hospital the next day. He was back at work the day after that.

A similar but previously undisclosed procedure was performed in November 2005, just two months after Chief Justice William Rehnquist died, and just days after Alito was tapped to fill another high court vacancy.

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Justice Anthony Kennedy, who was appointed by President Reagan, has not been shy about using his power.



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