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Bench Memos

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The Other Justice O’Connor



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Charles Lane’s article in today’s Washington Post highlights the fact that Justice Kennedy, not Justice O’Connor, has become the real swing vote on the Court:

Kennedy joined with the court’s liberals to abolish the death penalty for juvenile offenders, to give local governments a green light to take private property for economic development and to endorse a broad theory of federal regulatory power that denied states the right to override a federal law against homegrown medical marijuana.

O’Connor actually found herself in dissent in most of the court’s big cases last term, voting to uphold the juvenile death penalty, to strike down Texas’s display of the Ten Commandments, to forbid takings of private property for economic development and to uphold California’s right to pass a medical marijuana law.

Kennedy’s leftward shift (again, allowing for the inadequacy of political labels to describe judging) means that O’Connor’s resignation will change very little: Even if she is replaced by a sound justice, Kennedy’s vote will continue to be the swing vote.

I don’t mean by this observation to suggest that it is unimportant who replaces O’Connor—I think it’s imperative to find a strong replacement—but rather to highlight that building a Court that will be faithful to the Constitution and that will respect the powers of citizens to govern their own communities is a long-term project.



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