The New Sandra Day O'Connor on the Supreme Court?

It should be clear to anyone thoughtful - and I don't mean political bias holders - that the Supreme Court Bush has weighted heavily toward the far right with the addition of Roberts and Ito, made worse by the resignation of the conservative Sandra Day O'Connor.

Yet, associate justice Anthony Kennedy provided a surprise swing vote in the Hamdan case, the one on Guantanamo Bay/Gitmo that says there should be some limits to what the Bushies can do regarding detainees they choose to keep forever in limbo, void of rights guaranteed under the Geneva Convention. It's too early to say whether Kennedy will take the centrist role of decision maker that O'Connor came to wield, but The Nation looks at this justice in a piece entitled, "The Kennedy Court". I think it's required reading (but what do I know?).

Here's a snip-snip:

The Supreme Court's 2005-06 term--the first to feature the newly confirmed Chief Justice, John Roberts Jr., and Justice Samuel Alito--began with a whimper and ended with a bang. The term's early months saw the Court issuing an unusually high number of unanimous opinions, even in such potentially controversial areas as abortion and gay rights, as the Court sought to decide cases extremely narrowly and thereby avoid controversy. But by the end of the term, controversy was front and center, as the Court divided sharply on its most significant cases, culminating in the stunning 5-to-3 decision, the last day of the term, declaring George W. Bush's military tribunals illegal.

In Hamdan v. Rumsfeld, the most important case of the term, the Court showed itself willing to do what neither Republicans nor Democrats in Congress have been able to do: Stand up to the President in the "war on terror." The Court's decision reaffirmed, as Justice John Paul Stevens put it, that "the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction." The Court's capitalization of the "Rule of Law" underscored its effort to enforce the concept of legality on an Administration that has long since adopted the view that the law can impose little or no constraint on the President during wartime--whether it be the international laws of war, criminal prohibitions on torture and warrantless wiretapping of Americans, or the Uniform Code of Military Justice, a statute that establishes the rules for military trials.

But as much as Hamdan deserved celebration for rejecting the President's vision of unchecked power in the post-9/11 world, the term also showed just how close the country is to a system of government that has no meaningful checks and balances. Bush's two new appointees generally proved themselves reliable conservatives--if not exactly in the mold of Justices Scalia and Thomas, which Bush said he was striving for, at least very close. Justices Roberts, Alito, Scalia and Thomas proved a reliable four votes for conservative results, while Justices Stevens, Souter, Ginsburg and Breyer continued to be a fairly reliable four votes for moderate to liberal outcomes. (Long gone are the days of Justices William Brennan and Thurgood Marshall.)