It's Kennedy in Charge

Justice William M. Kennedy, that is. With newest justice Samuel Alito comfortably settling into the conservative wing of the court, there are now two solid 4-robe teams on each side, leaving Kennedy alone to play the decisive role in any controversial cases.

For the second time in less than a week, Kennedy decided with the conservatives but issued a concurring opinion that largely undercut them. Last week in Hudson v. Michigan he agreed that failure to "knock and announce" should not in and of itself exclude evidence seized during a search warrant, but emphasized his fealty to the exclusionary rule generally. Then this week in Rapanos v. United States, an environment vs. property rights case, he joined with the conservatives in sending it back to the lower court, but, in his concurrence, generally agreed with the liberals on the broad interpretation of "navigable waters" to include whatever lands the Army Corps of Engineers says it includes.

Being the only moderate on the court gives Kennedy tremendous power. While a bit to the right of O'Connor, he clearly enjoys the notoriety of spoiling things for the conservatives just as she did, and will no doubt move a bit to the left if necessary to play this role effectively. As I noted before, the court was slightly liberal last year, and so O'Connor's replacement by Alito should move it a bit rightward. But Kennedy will no doubt keep it from being a decidedly conservative court.