With Alito, Kennedy would have pivotal role

WASHINGTON -- The confirmation of Samuel A. Alito Jr. to the US Supreme Court would make Justice Anthony Kennedy the court's swing vote, giving him decisive power on constitutional law governing abortion restrictions, affirmative action, campaign finance regulations, and government involvement with religion, legal scholars said.

Kennedy, 69, would probably become the dominant figure on the bench, occupying the center position on a court otherwise balanced between four reliable liberals and four reliable conservatives, scholars said. As the swing vote, Kennedy would be able to pick which faction to make into a five-vote majority, essentially making his own views the law of the land.

''To understand what Alito's appointment means for constitutional doctrine, instead of focusing on Alito's views, which one assumes are reliably conservative, one needs to focus on Kennedy's," Yale Law School professor Jack Balkin said. ''Wherever you have close cases that produce 5-4 votes, Justice Kennedy's views are likely to prevail, and those are the prominent areas that people fight about most in the constitutional arena."

Kennedy is a mainstream conservative with a libertarian streak and a belief in federalism, a philosophy that restrains Congress from imposing some laws on states. President Reagan picked Kennedy in 1988 to fill a seat originally meant for Robert Bork, whose nomination was derailed by liberal opposition.

Since his confirmation, Kennedy has become something of a pariah to conservatives because he has occasionally broken ranks to join the court's liberal bloc on key issues, including upholding a basic right to an abortion, striking down an anti-gay sodomy law, and ending the death penalty for juvenile and mentally disabled murderers.

Throughout the past decade, Kennedy's maverick tendencies have been overshadowed by Justice Sandra Day O'Connor, who was an even more frequent swing voter. But if the solidly conservative Alito replaces O'Connor, Kennedy would be the clear swing vote, analysts said.

Legal scholars cautioned that their analysis is predicated on the assumption that Chief Justice John G. Roberts Jr. turns out to vote in line with his predecessor and mentor, the late William Rehnquist. But most think Roberts will reliably cast conservative votes, and they have turned to Kennedy's record for a guide to how Alito's ascent would change the court's rulings.

''The swing vote on the court would switch to Justice Kennedy, and that would be a massive transformation because on many key issues, Kennedy has been more conservative than O'Connor," said Cass Sunstein, a University of Chicago Law School professor.

One of those issues, legal scholars agree, concerns the restrictions that may be imposed on abortion access. Kennedy has voted to uphold a basic constitutional right to an abortion, but he has been more willing than O'Connor to allow restrictions on abortion services.

For example, the two split in 2000 over whether to uphold a law banning a late-term abortion procedure referred to by opponents as ''partial-birth abortion." O'Connor joined the liberals in a 5-to-4 decision striking the law down, and Kennedy dissented along with the conservatives who oppose abortion rights.

''Kennedy is much less likely than O'Connor was to find that an abortion regulation constitutes an [unconstitutional] 'undue burden,' so you can imagine right off the bat that it will make a difference on partial-birth abortion," Harvard Law School professor Richard Fallon said.

Affirmative action is another issue on which O'Connor and Kennedy have sometimes disagreed. Kennedy says he believes, in theory, that the government can take race into account under some circumstances, unlike the more conservative justices. But in practice, Kennedy has been much more skeptical than O'Connor.

Sunstein cited a 2003 case about a University of Michigan Law School affirmative action program that was ''upheld by a single vote -- O'Connor's -- where Kennedy was on the other side. So if Alito and Roberts are also against affirmative action, then it may be that it's going down the drain."

Specialists also noted that Kennedy has been more willing than O'Connor to strike down restrictions on campaign financing as violations of free speech, another issue that has divided the court.

And Kennedy has been more willing than O'Connor to allow the government to aid or endorse religion. For example, unlike O'Connor, he voted to uphold government programs that provide direct funds to some religious institutions. But unlike some conservative justices, Kennedy has voted to strike down prayers at school ceremonies as unconstitutionally coercive.

Although an Alito confirmation would give sweeping power to Kennedy, his reign as the swing vote may not last as long as the decade enjoyed by O'Connor. If an aging liberal justice such as John Paul Stevens, 85, is forced to step down before the end of Republican control of the White House and the Senate, another solid conservative could join the court.

But unless that happens sooner than expected, scholars said, an Alito confirmation will mean a Kennedy coronation.

''In teaching constitutional law classes over the past five to 10 years, I've been telling students that Justice O'Connor is the one both sides have to win," Fallon said. ''Now there will be a large number of cases being argued before the Supreme Court where the lawyers will know that 'I can't win unless I can get Justice Kennedy's vote, and if I can get it I'm almost certain to win.' "