There's been a lot of talk this year — especially from Al Gore — about the intersection of presidential politics and the makeup of the Supreme Court. Dedicated Court observers are primed for a new administration, and the attendant uncertainties and new appointments.
But as it turns out, we may not have to wait until fall; as the Justices passed down their end-of-session decisions Wednesday, questions swirled around one Court member in particular. Catching many legal analysts off guard, Justice Anthony Kennedy joined the minority dissent as the Court stuck down a Nebraska law banning late-term abortions, declaring it unconstitutional.
The effect of Kennedy's decision goes beyond initial surprise; his stance seems to push the Court ever closer to an anti-abortion majority. Joined by the more predictable ranks of Justices Scalia, Thomas and Rehnquist, Kennedy wrote a scathing rebuttal to the majority opinion, in which he lambasted the Court's interpretation of its own ruling in the 1992 Planned Parenthood v. Casey case, which upheld Roe v. Wade. Kennedy, a contributor to the 1992 majority opinion, has apparently been overtaken by serious reservations as he considers the future of abortion in America — leading many to wonder if an anti-abortion plurality could be looming on the horizon.
Adding fuel to the already raging speculative fire, Kennedy also joined Scalia and Thomas in a dissent against the majority opinion in another abortion-related decision Wednesday. By a 6-3 margin, the Justices upheld a Colorado law requiring abortion protesters to keep a specified distance from clinic patients and employees, concluding that the statute does not violate the First Amendment rights of the protesters. And while the Colorado decision was not nearly as close, Kennedy's position rattled many pro-choice advocates, who have come to count on him as a dependable if somewhat unenthusiastic defender of abortion rights.