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Define the term “swing vote” and explain with examples, how its impacts upon Supreme Court rulings
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Define the term “swing vote” and explain with examples, how its impacts upon Supreme Court rulings
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Jessica lachlanDefine the term “swing vote” and explain with examples, how its impacts upon Supreme
Court rulings
A swing vote is where there is a single judge on a tight case could politically swing the
verdict either way. There are always periods when a bloc of four consistently conservative
justices have opposed 4 consistently liberal justices. A great deal of attention is then paid to
a justice who is completely politically un-biased who is going to have to form a majority with
either bloc. Associate justice Anthony Kennedy who was appointed in 1988 by Regan is the
swing voter. When the court has decided cases 5-4, the decision of Justice Kennedy has
often been the deciding factor.
In 2008 there was the Boumediene V Bush case. The problem was whether foreign citizen
prisoners detained in US prison Guantanamo Bay,on Cuban soil should have the right to the
habeas corpus under the United States Constitution? Kennedy made an activist decision and
sided with the liberals instead of the conservatives which is where he usually sat, against the
federal government and said that they did have the right and the Military Commissions Act
of 2006 was an unconstitutional suspension of that right. This decision impacted future
Supreme Court rulings as it clarifies that the fact that the United States maintains "de facto"
sovereignty over this territory, while Cuba retained ultimate sovereignty over the territory.
The prisoners at Guantanamo are entitled to the writ of habeas corpus protected in Article I,
Section 9 of the U.S. Constitution even though the lower court had expressly indicated that
no constitutional rights extend to the Guantanamo detainees. The Supreme Court held that
fundamental rights afforded by the Constitution extend to the Guantanamo detainees as
well.
Another example of where a significant swing vote was used was in the Planned Parenthood
v Casey case in 1992. The problem was can a state require women who want an abortion to
obtain informed consent, wait 24 hours, and, if minors, obtain parental consent, without
violating their right to abortions as guaranteed by Roe v. Wade? Kennedy was again the
swing voter here and instead of siding with the conservatives like he previously did, he sided
with the liberals in an activist decision, which reaffirmed Roe and still upheld most of the
Pennsylvania provisions. The significance of the decision was that for the first time the
justices imposed a new standard which asks whether a state abortion regulation intends on
imposing an obstacle in the path of a woman seeking an abortion before the feotus attains
“viability".
Another example is the Lee V Wiseman case in 1992. The problem was does the inclusion of
clergy who offer prayers at official public school ceremonies violate the Establishment
Clause of the First Amendment? Kennedy went form conservative to liberal again in a
restraint decision which said Yes it does. The significance of this decision was that the basis
of the establishment clause is that the government may not compose official prayers as part
of a religious program carried by government.
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