To be the swing voter, you have to be willing to swing. In the last three weeks, U.S. Supreme Court Justice Anthony Kennedy has shown how it’s done.
First he wrote the majority opinion in a landmark 5-4 case establishing a constitutional right to an adequate lawyer in plea-bargaining negotiations. Liberals were enthused. Yet in his tough questioning during the Obamacare arguments, he shook up the conventional wisdom that mandatory coverage would be upheld comfortably. Liberals were not enthused. Then, as a coda, he wrote the majority opinion in a 5-4 case allowing jails to strip-search anyone being put into the general prison population -- even without suspicion, and even after the most trivial misdemeanor arrest. The same liberals who loved him in March are prepared to loathe him in April.
What principle, if any, explains Kennedy’s vote in the strip-search case? Kennedy-watchers know that he is deeply sympathetic to arguments based on human dignity. His perception of dignity led him to vote to preserve the core of Roe v. Wade in 1992, and to write the two opinions that more or less created constitutional rights for gay people.
The plaintiff in the strip-search case was arrested after a routine traffic stop and jailed for a minor outstanding warrant that may well have been a mistake. Before entering the jail, he was forced to strip, lift his genitals, squat and cough. If that isn’t an assault on human dignity, you might think, what is?
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