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January 31, 2006


Mike Thomas

I have two takes. The optimistic one is that Alito's extremism combined with the right-wing troika of Scalia-Thomas-Roberts will push Justice Kennedy further to the left where he will take up where Sandra Day O'Connor left off, thus changing little in the makeup of the court. The only difference is that there will be more 5-4 decisions and fewer 6-3.

The negative one is that Kennedy does not move left and we have a true shift to the right with a lot of 5-4 decisions going the other way. While this is bad, there is also the silver lining to consider by remembering that major ideological shifts such as this tend to fuel opposition movements. The same way the conservative movement has been feeding off of the Roe v Wade decision all these years, it's overthrow and a return to restrictions on women's rights could spark an outcry and an uprising in the electorate that would help the Democrats regain control of Congress and win the presidency during the next several election cycles.


I doubt Kennedy will move left. He already joined in a fair number of 6-3 decisions. Those will likely be 5-4 now, as you point out.

O'Connor was apparently quite conservative on a number of economic issues, and on those issues little will change on the court. Kennedy will be the swing vote on those issues as he is today.

So there won't be earth-shattering change. At least until Stevens, Ginsberg, Breyer, or Souter retire.

Let's hope we can get someone in the presidency ASAP to put in respectable replacements for them.

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