A Supreme Court of One

The new John G. Roberts Supreme Court is only one term old, and already we're all wrong about it.

Liberals had feared, and conservatives had feted, the end of judicial review as we know it, at least until last week's blockbuster ruling in Hamdan v. Rumsfeld proved that bit of conventional wisdom wrong practically before it had become conventional. Predictions of a new era of hands-off judicial minimalism may have been premature.

Yes, we are seeing the expected shift to the political right with the replacement of moderate Justice Sandra Day O'Connor by conservative Justice Samuel A. Alito Jr. But, more significant, the role of swing justice has itself swung from O'Connor to Justice Anthony M. Kennedy. On all the most divisive issues, today's court is now a Supreme Court of One.

Yes, Kennedy, 69 and on the court for 18 years, has inherited the power to decide crucial cases, and this term he showed us what that might mean. In Hamdan, he joined with the court's left wing to invalidate the military tribunals President Bush had concocted for the detainees at Guantanamo Bay, Cuba. And the majority opinion he joined, written by Justice John Paul Stevens, was neither minimalist nor mild: "In undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."

But more crucial, Kennedy has appropriated O'Connor's trick of writing an opinion or a concurrence that goes on to become the law of the land. O'Connor was famous (and not always in a good way) for signing onto an opinion, but on narrower grounds than the four other justices in the majority. The trick is that the justice who decides the case most narrowly speaks for the whole court. And that's how O'Connor imprinted her views on an awful lot of jurisprudence.

But unlike O'Connor, who invariably pooh-poohed her pivotal role on the court by saying she simply had one vote like every other justice, Kennedy is said to relish it. In his controversial book "Closed Chambers," Edward Lazarus, a former clerk for the late Justice Harry A. Blackmun, claimed that Kennedy deliberately stakes out positions that would make him a "necessary but distinctive fifth vote for a majority."

The fact that Kennedy is not moored to any one ideology or interpretive theory has led him to some spectacular defections from the court's conservatives -- to the lasting fury of the right. It was Kennedy, after all, who allied with O'Connor and Justice David H. Souter to preserve the core holding of Roe v. Wade in 1992, and it was Kennedy who wrote the court's broadest defense for decriminalizing gay sodomy. Kennedy also voted with the court's liberals to strike down the death penalty for juveniles and the mentally disabled , and he wrote a crucial opinion prohibiting sectarian prayer at a public-school graduation.

Kennedy is rumored to be easily influenced by his colleagues, the media and his affection for all things foreign, making his critics even more nervous. It sometimes makes his fans even more so. Adam Cohen of the New York Times recently wrote of Kennedy that, at the very least, "there is something refreshing about a justice who genuinely seems to have an open mind."

For years, the law clerks' "tug of war for Kennedy's mind" that Lazarus described has been the stuff of insider speculation. Now that Kennedy is the court's lone swing vote, that spectacle has become increasingly public.

From Focus on the Family founder James C. Dobson, who famously called Kennedy "the most dangerous man in America," to advocates at the court, who more and more frequently respond to the justice during oral arguments as though they were addressing themselves to the burning bush, trying to influence Kennedy has become something of an Olympic event. The hottest game in Supreme Court brief-writing is to quote Kennedy gratuitously and often. In other words, flattering Kennedy has become something of an art.

The other justices are playing the quote-Kennedy game, too, presumably in hopes of wooing him to their side. Read, for example, the opinion and dissent in Rapanos et al. v. United States , the term's main environmental case. Each side made sure to send a love note to Kennedy.

The justices may also be cozying up to Kennedy in other ways: He won himself some sweet writing assignments this term. Some court-watchers have suggested that the bizarre trio of Kennedy, Roberts and Stevens, who jointly issued a strange concurring opinion in the Jose Padilla case last April, was yet another effort by the court's right- and left-wing leaders to show Kennedy a little more love. Roberts is a savvy insider who knows that, over the years, the abuse heaped on the court's moderates from the right has pushed them into the arms of the court's liberals. So Kennedy is now being love-bombed.