| Subject: Justice Kennedy, Wetlands, and The Future of Election Law |
| From: Rick Hasen |
| Date: 6/19/2006, 8:45 PM |
| To: election-law |
What I know about wetlands regulation could fit in a thimble, but I was struck in reading this description by William Buzbee of the breakdown of opinions in Rapanos/Carabell, today's set of Supreme Court opinions interpreting the Clean Water Act. Buzbee wrote: "First and most importantly, this case resulted in a 4-1-4 split, with a plurality opinion of four Justices (Scalia, Roberts, Thomas and Alito), a Kennedy concurrence in the judgment and his own opinion strongly rejecting the Scalia plurality approach, a brief concurring opinion by CJ Roberts acknowledging that there is no Court opinion, but stating that in this situation Kennedy's opinion is key (via a cite to the Marks case), and then the four Justice dissent (Stevens, Souter, Ginsburg, Breyer)."
This reminded me so much of what happened in the Vieth partisan gerrymandering case from 2004, in which the Court had a similar 4-1-4 split, with Justice Kennedy serving as the deciding (but indecisive) vote in a case in which Justice Scalia on one hand and Justice Stevens on the other set out strong polar oppostie positions on a contentious issue.
We've all been suspecting what Jack Balkin, Sam Issacharoff, and others have predicted: Justice Kennedy is the new median voter on the Court. What has not been so clear is how often he would be put in the role of the sole decisive opinion writer, a new Justice Powell in Baake as it were (or even the new Justice O'Connor). It appears he's going to be put in that role a great deal.
The implications for election law are profound, especially in the Texas redistricting and Vermont campaign finance cases, which could be decided as early as Thursday. The big question mark in these cases has been the role of C.J. Roberts and Justice Alito. Given all the talk of moderation and moving slowly on the Court, I have been predicting that the Court could move slowly, even if it is going to change election law in conservative directions (such as by making it more difficult for jurisdictions to impose campaign finance rules). It wasn't that I had been predicting that either of these Justices would side with the four more liberal members of the Court. It is the idea that any decisions changing the status quo would be gradual, relying upon stare decisis where possible and moving slowly in a minimalist fashion.
But the wetlands case suggests that CJ Roberts and Justice Alito are
not necessarily interested in staking out moderate positions on
contentious issues. If that's the case, it magnifies even greater the
role that Justice Kennedy is likely to play in these cases, and soon.
On that note, it might be worth recalling that there was one provision
of McCain-Feingold's soft money rules that Justice Kennedy was willing
to uphold in the McConnell case. He voted (with the vote of CJ
Rehnquist but without that of Scalia or Thomas) to uphold BCRA section
323e, which barred federal candidates from soliciting soft money. He
wrote:
-- Rick Hasen William H. Hannon Distinguished Professor of Law Loyola Law School 919 Albany Street Los Angeles, CA 90015-1211 (213)736-1466 (213)380-3769 - fax rick.hasen@lls.edu http://www.lls.edu/academics/faculty/hasen.html http://electionlawblog.org