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Now, it’s the Kennedy court

By Erwin Chemerinsky


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We have now entered the era of the Anthony Kennedy Court. The recently completed Supreme Court term shows that Justice Kennedy is clearly the swing vote and likely will determine the outcome of most high profile cases so long as these remain the nine justices on the high court.  

In their first term, Chief Justice John Roberts and Samuel Alito were every bit as conservative as conservatives hoped and progressives feared. In virtually every important case they were together with Justices Antonin Scalia and Clarence Thomas. In many important cases, Justice Kennedy joined them to produce conservative rulings. Sometimes, though, Justice Kennedy joined with Justices Stevens, Souter, Ginsburg and Breyer to produce more moderate or liberal results. But time and again, it was Anthony Kennedy who decided the result and the scope of the Court’s opinions.

Civil liberties and the war on terrorism

The most significant case of the year was likely Hamdan v. Rumsfeld, which held that the military commissions created by the Bush administration for those in Guantanamo violated international law and the Uniform Code of Military Justice. 

The Supreme Court held that the Detainee Treatment Act, adopted by Congress in December 2005 to prevent habeas corpus actions by prisoners in Guantanamo, does not apply retroactively to cases pending at the time that it was adopted. The Court further held that there was not adequate congressional authority for the military tribunals created by Executive Order.  

The Court stressed that the procedures for the military commissions violated both the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions. Defendants, and even their attorneys, could be excluded from proceedings and prevented from learning the evidence against them. The Court also noted that the Commission Order dispenses with virtually all of the rules of evidence followed in court martial proceedings. The Court rejected the government’s claim that it was impracticable to comply with the requirements of the Uniform Code of Military Justice.  

The decision was 5-3, with Justice Stevens writing the opinion for the Court that was joined by Justices Souter, Ginsburg, Breyer and Kennedy. Chief Justice Roberts did not participate because he had been one of the judges who decided the case in the United States Court of Appeals for the District of Columbia.

The significance of the case is in the Supreme Court’s emphatic rejection of the Bush administration’s claim that its actions as to the Guantanamo prisoners are unreviewable in the federal courts. The Court was clear that the prisoners there are protected by American and international law.

Freedom of speech

It was a tough year for freedom of speech in the Supreme Court. Almost all of the major cases were decided against the free speech claims.  From a practical perspective, the most significant of the decisions likely was Garcetti v. Ceballos, in which the Supreme Court greatly restricted the free speech rights of government employees. 

The Court ruled 5-4, with Justice Kennedy writing the majority opinion, that government employees are not protected by the First Amendment for speech on the job that relates to the performance of their duties. In this case, the Court refused to provide First Amendment protection for a Los Angeles County deputy district attorney who exposed false and misleading statements by a deputy sheriff and then suffered adverse consequences from superiors. The Court concluded:  “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

Garcetti v. Ceballos is a significant loss of free speech rights for government employees and, even worse, a restriction on the ability of the public to learn of government misconduct. Without First Amendment protection, many fewer whistleblowers are likely to come forward and expose wrongdoing when they might face adverse consequences.

In Rumsfeld v. FAIR, the Supreme Court rejected a First Amendment challenge to the Solomon Amendment, which requires that universities not discriminate against the military. Law schools have a policy which prevents employers who discriminate on the basis of race, gender, religion or sexual orientation from using career service facilities. Most law schools excluded military recruiters because of a federal statute that excludes gays and lesbians from serving in the military. The Solomon Amendment was enacted in response to this and provides that a university will lose most of its federal funds if any of its parts denies the military equal access.

The Supreme Court unanimously reversed the Third Circuit’s holding that this violated the First Amendment. The Court emphasized that law schools still could express their disagreement with the military’s exclusion of gays and lesbians. The Court stressed the need for judicial deference to congressional judgments concerning the operation of the military.

Finally, in Beard v. Banks, the Court upheld a Pennsylvania prison regulation that deprived some inmates of access to all newspapers, magazines and photographs. In a 6-3 decision, with Justice Breyer writing for the majority, the Court expressed the need for great deference to prison authorities and their judgment that this restriction could provide an incentive for prisoners to improve their behavior to gain more reading privileges.

The Court and the political process

Two high profile cases involved important aspects of the political process. In League of United Latin American Citizens v. Perry, the Court ruled 5-4 to allow the redistricting in Texas even though it blatantly favored Republicans over Democrats and it replaced districts that had been drawn by a court after the 2000 census. After Republicans gained control of the Texas legislature in 2002, they redrew congressional districts and those for the Texas state legislature to maximize seats for Republicans. The gerrymandering was very effective: after the 2002 elections, the Texas congressional delegation was 17 Democrats and 15 Republicans; after the 2004 elections, it was 21 Republicans and 11 Democrats. This is not unique to Texas, though it was more blatant there than in many places.

With increasingly sophisticated computer programs to draw safe districts, there are few contested races for seats in the House of Representatives and many state legislatures. But for the second time in two years, the Court by a 5-4 margin rejected constitutional challenges to partisan gerrymandering.

In Randall v. Sorrell, the Court declared unconstitutional a Vermont law which limited both the size of contributions to candidates and the amount a person could spend overall during a campaign. Since Buckley v. Valeo, in 1976, the Supreme Court has held that the government can limit the amount of contributions a person can make to a candidate or a committee for a candidate, but the government cannot limit the total amount that a person can spend. In light of this, it was not surprising that the Court struck down the expenditure limits in the Vermont law.  

Much more notable was that the Court, 6-3, found that the contribution limits in the Vermont law were unconstitutional because they were too low. The case likely opens the door to challenges to federal, state and local campaign finance laws that set limits on contributions and that might be claimed to be too low.

Criminal procedure

Criminal defendants had a mixed year in the Supreme Court. For example, this year, the Supreme Court decided five cases involving the Fourth Amendment and search and seizure. Four were won by the police, and the fifth is unlikely to limit law enforcement behavior. This suggests that the Roberts Court is likely to be very deferential to police in criminal procedure cases.

No case more vividly illustrates this as the Kennedy Court than Hudson v. Michigan. For many years, the Supreme Court has held that the police usually must knock and announce before entering a residence. In Hudson v. Michigan, the Supreme Court ruled 5-4 that the exclusionary rule does not apply when police violate the Fourth Amendment’s requirement for “knock and announce.”

Justice Scalia wrote for a plurality of four in which he called into question the very existence of the exclusionary rule. He referred to it as a “last resort” and stressed the great costs of the exclusionary rule in terms of suppressing important evidence and potentially allowing dangerous people to go free. He argued that the exclusionary rule is unnecessary. Justice Scalia’s arguments were for the complete elimination of the exclusionary rule.

Justice Kennedy provided the fifth vote for the conclusion that the exclusionary rule does not apply when police violate the knock and announce rule, but he stressed that the continued viability of the exclusionary rule is not in doubt. But the willingness of four justices — Roberts, Scalia, Thomas and Alito — to overrule decades-old precedents and eliminate the exclusionary rule certainly gives a sense that major changes are likely in constitutional law in the years to come.

The one victory for a criminal defendant this year in a Fourth Amendment case is unlikely to be much of a constraint on police behavior. In Georgia v. Randolph, the Court held that if both occupants of a residence are present, there is not valid consent if one objects to the search. The case involved a situation where the wife consented to the police search, but the husband who was the target refused consent. The Court, in a 5-3 decision with the majority written by Justice Souter, said that there was not valid consent.           

But police can easily circumvent this ruling. They could simply wait until the husband left and then come back and ask the wife for permission to enter and search. The Court was clear that if only one occupant of a residence is present and that person gives consent, that is sufficient to meet the requirements of the Fourth Amendment.

There were, however, some important victories for criminal defendants. 

House v. Bell is another example of Justice Kennedy casting the decisive vote in a 5-4 decision. A defendant who was convicted of murder and sentenced to death produced strong evidence of his actual innocence. At trial, the prosecutor said that the motive for the crime was rape and pointed to the rape as the key aggravating factor justifying the death penalty. On habeas corpus, the defendant produced DNA evidence that showed conclusively that the semen on the victim’s clothes, the basis for the rape charge, was from the victim’s husband. The defendant also produced other evidence of his innocence, including two witnesses who heard the victim’s husband confess to the murder. The Supreme Court, 5-4, in an opinion by Justice Kennedy, found that this was sufficient evidence of actual innocence to allow the defendant to bring key constitutional claims. 

In United States v. Gonzalez-Lopez, the Court held that the Sixth Amendment guarantee of a criminal defendant’s right to “have the assistance of Counsel for his defense” includes the right to counsel of one’s choice. The Court, in a 5-4 decision, with Justice Scalia writing for a majority that included Justices Stevens, Souter, Ginsburg and Breyer, held that the trial judge violated the defendant’s Sixth Amendment rights by denying a motion for pro hac vice admission of a qualified attorney whom defendant had hired. The Court concluded that the defendant was not required to demonstrate prejudice in order to establish a Sixth Amendment violation and that this type of constitutional infringement is a structural error and thus not subject to harmless error analysis.

From a practical perspective, no case is likely to be more significant than Davis v. Washington. Two years ago, in Crawford v. Washington, the Court held that it violates the Confrontation Clause of the Sixth Amendment to use out-of-court statements against a criminal defendant if they are “testimonial.” There has been enormous confusion in the lower courts as to what is testimonial.

In Davis, the Court held that statements made during a 911 call are not testimonial and can be used, but statements made to police visiting a home in response to a domestic disturbance are testimonial and cannot be admitted against a criminal defendant. The Court stressed that the former is an emergency with questions oriented towards gaining a sense of on-going events. But the Court said that it is different if there is no emergency and the police are trying to gain information about events that have already occurred.


In practical terms, Justice Kennedy has replaced Justice Sandra Day O’Connor as the swing vote on the Court. The changes in constitutional law are likely to occur in the areas where Justice Kennedy is more conservative than she was as a justice. For example, Justice Kennedy was more willing than Justice O’Connor to allow regulation of abortion, to strike down affirmative action programs and to permit religious displays on government property.        

Already for next year, the Court has on its docket important cases concerning abortion rights and the use of race in assigning pupils. In all likelihood, in these cases and many others, it will be Anthony Kennedy casting the deciding vote and determining the meaning of the Constitution.

Erwin Chemerinsky is the Alston & Bird Professor of Law and Political Science at Duke University.

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