The first year of the Roberts Court saw Kennedy help push a sharp right shift, not only in the cases the Court decided but also in the cases the Court decided to hear in the 2006-2007 term. Abortion and affirmative action cases were put on the calendar for Roberts' second year. There is little doubt about the outcome in each of the cases previously decided on these issues.
O'Connor was the swing to protect what anti-choice advocates call partial birth abortions, and to protect affirmative action. The cases decided not only saw the effect of Roberts and Alito, but they showed that far more often than not, Kennedy was to the right of O'Connor and there were 5-4 cases with Kennedy joining the conservatives far more than O'Connor did or would have.
It is not surprising that Alito was far more conservative than O'Connor or that Alito and Roberts had the highest agreement rate of any two justices on the Court in nonunanimous decisions (88 percent). What was clear in both today's Court and as a reminder that the Clinton appointees were moderates, not liberals, was the future defection of the Clinton appointees to the conservative bloc in several key cases. The two Republican appointed members of the moderate bloc, Stevens and Souter, were most consistently opposed to the conservative bloc, more so than Breyer or Ginsberg. Three cases, agreed when O'Connor was on the bench, were reaffirmed when Alito came. Two were definitely changed by the switch of judges - the third perhaps as well.
Many of the cases that show the true nature of the Roberts Court and Justice Anthony Kennedy have been below the radar. I will, in this and subsequent articles specifically refer to issues and cases that give perspective. My new book, "The Next 25 Years: How the Supreme Court Will Make You Forget the Meaning of the Words Privacy and Equality," makes the point in greater detail.
One such case was Kansas v. March, a case upholding a Kansas statute that said, if at the second part of a murder case, dealing with whether the defendant should get the death penalty or a less severe sentence (the first part of the two part case deals with guilt or innocence) if the jury finds that the evidence against the imposition of the death penalty is equal to the evidence for the death penalty, then the death sentence is automatic. Kennedy was with the 5-4 majority - there is little doubt O'Connor would have voted the other way. While the basic differences between Kennedy and O'Connor will be more clearly seen when he votes against the affirmative action case and to uphold the federal ban on partial birth abortion, the Kansas case shows how strongly they disagree on capital punishment.
Disagreeing on capital punishment is more than disagreeing on a penalty. It is a disagreement over how fairly the criminal justice system adjudicates, over whether the death penalty racially discriminates as well as over the caliber of lawyers indigents get in serious cases. It is an indication of how Kennedy will rule in other racial and criminal justice cases.
Scalia called propaganda the argument that innocent people have been executed. Nor, he said, does he care about what the rest of the world thinks of us.
This difference manifested itself in a 5-4 decision where the Court held that a defendant who has been wrongfully deprived of his right to hire a lawyer of his choice can have his conviction overturned without having to prove that his first choice lawyer would have gotten a better result. Kennedy joined Thomas, Roberts and Alito. Justice Scalia, who rarely lines up with the liberals, did so in this case - in right to counsel cases he often leaves the conservative bloc. But if Kennedy were the swing vote it would have gone the other way. O'Connor would not probably have joined the liberal bloc - her view of criminal justice is very different than Kennedy's.
Given what we all now know about capital punishment, it seems incredible that five Justices of this Court will execute a defendant when the jurors are equally divided on whether or not he deserves it. We know of the refusal of states to execute, of the extraordinary power of death sentences reversed because of DNA and other technologies, and the fact that it is the poor and the black who are most executed. It was these facts that made O'Connor move from a staunch supporter to one who was humble and cautious, skeptical of the fairness of penalty. She cut and whittled away at death sentences even as she could never bring herself to say the penalty was unconstitutional.