Sometimes justices defy type-casting

The Supreme Court’s decisions in recent weeks have casual observers scratching their heads trying to figure out the ideological bent of this bench.

The focus of those mental gymnastics can be narrowed to one justice: Anthony Kennedy. He’s the new Sandra Day O’Connor.

In the last three weeks of the high court’s 2007-2008 term, Kennedy’s swing from right to left and back made the difference in four cases.

The court:

UEstablished the Second Amendment as an individual right to own firearms and is not one limited to members of state-run militias.

UStruck down the use of capital punishment in cases of child rape when the child is not killed.

UStruck down the “millionaires’ amendment” in federal campaign finance law that made it easier for opponents of wealthy U.S. House candidates to raise money.

UAffirmed that inmates at the U.S. prison at Guantanamo Bay have constitutional rights and can seek release in federal court.

Kennedy penned the majority opinions in the Gitmo and child rape cases.

How to explain an associate justice — nominated to the bench by the darling of the hard-core conservatives, President Reagan — who on the surface appears so schizophrenic.

Call it a dogged dedication to neutrality.

“Our system presumes that there are certain principles that are more important than the temper of the times,” Kennedy told the PBS program “Frontline” in an interview. “And you must have a judge who is detached, who is independent, who is fair, who is committed only to those principles, and not public pressures of other sort. That’s the meaning of neutrality.”

Powell replacement

Kennedy wasn’t Reagan’s first pick for the seat made available upon the retirement of Justice Lewis Powell in 1987. The president first nominated the strongly conservative Robert Bork, who ran into an impenetrable wall of opposition during Senate confirmation hearings.

Next, Reagan tapped Judge Douglas H. Ginsburg, but he withdrew under pressure from administration officials and his own conservative supporters in Congress after admitting he had smoked marijuana.

Reagan then turned to Kennedy. When Reagan was the governor of California, he got to know Kennedy, who was running a law firm in the state’s capital of Sacramento and handled legal work for members of Reagan’s staff. On a court packed with liberal judges, Kennedy rose as the leader of the conservative minority with his thoughtful and balanced opinions.

Kennedy skated through his Dec. 14-16, 1987, Supreme Court confirmation hearings and garnered a 97-0 vote.

He has often confounded conservatives by what they view as decidedly unconservative opinions. Kennedy, for example, joined the opinion of Justice William J. Brennan Jr., in Texas v. Johnson (1989), which held flag burning is symbolic speech protected by the First Amendment. Justice Antonin Scalia also was in the majority in that case.

And therein lies the Forrest Gump lesson to be learned from the Supreme Court.

Similar to not knowing what’s inside a box of chocolates until you take out a piece and bite into it, trying to predict court opinions based on ideological labels can often end up with a mouthful of surprise.

X J.R. Labbe is deputy editorial page editor of the Fort Worth Star-Telegram. Distributed by McClatchy-Tribune.