A Supreme Court of One

And what is the crucial swing voter doing with his newfound superpowers? While it's still too early to predict, the invaluable annual end-of-term tally done by SCOTUSblog shows that Kennedy voted with the majority 84 percent of the time. In the 11 cases decided 5 to 4 this term, Kennedy was in the majority 75 percent of the time. He wrote the second-highest number of opinions, the most concurrences and only two dissents. But again, that's also only half the story. The other half is how Kennedy used that vote to shape the law.

It was Kennedy who provided the fifth vote in Hudson v. Michigan , an amazing criminal law case, in which he voted with the court's four reliably conservative jurists -- Alito, Roberts, Antonin Scalia and Clarence Thomas -- to hold that the remedy for police violations of the centuries-old "knock and announce" rule, required whenever the cops serve a warrant, was, in effect, nothing. But while Scalia's majority opinion showed a readiness to end the practice of throwing out evidence obtained illegally, Kennedy's moderating fifth vote put on the brakes, by insisting that the general rule of excluding evidence gained illegally was not in jeopardy. Future challenges to the exclusionary rule may hereafter be posed to the Kennedy Court of One.

Kennedy also provided the key fifth vote in Rapanos . The case tested the authority of the Army Corps of Engineers to enforce the Clean Water Act, and the four conservative justices would have dramatically curtailed the powers of the Corps. It was Kennedy -- again writing separately -- who refused to go as far as Scalia urged. And it was Kennedy whose opinion in Rapanos will thus become the standard for the Corps as it fashions future policy. Looking forward to next year's big greenhouse gases case, which explores whether the Environmental Protection Agency has an obligation to regulate carbon dioxide, a lawyer for the Sierra Club has already suggested that " Rapanos means . . . we will write our brief for Anthony Kennedy and maybe a little bit for Roberts."

Kennedy's was the moderating fifth voice again in the cacophony of the Texas redistricting case, where he sided with the court's conservatives to defeat the claim that then-Rep. Tom DeLay's mid-decade redistricting was unconstitutional. Nevertheless, he joined with the liberals to find that a new congressional district violated the rights of Hispanic voters. Once again, a Court of One.

And Hamdan , probably the most consequential separation-of-powers case in recent memory, also pivoted on Kennedy's vote. He sided with the liberals, while refusing to go as far as they would have led him.

What does all this nipping and tucking, shucking and jiving mean for Kennedy and the court? He clearly plans to fill the shoes recently vacated by O'Connor; shoes she, in turn, inherited from Justice Lewis Powell. They each played the role of moderating a polarized court; building bridges, navigating toward the center -- a center where most of the nation was most comfortable. Each took abuse for that when they sat on the court. Each was largely celebrated for it when they retired. Kennedy, too, appears poised to hold that center together. Indeed more often than not, he seems to be leaving his options open, laying the groundwork for revisiting these issue more fully in the future, as he becomes more comfortable in this role.

Much of the soaring rhetoric for which Kennedy was famed in previous years -- opinions that brimmed with "the ineffable glory of unflinching human dignity" and such -- seems to have been toned down of late. But then, perhaps Kennedy doesn't need to write about the ineffable glory of anything anymore. He can just sit back and bask in it instead.

dahlia.lithwick@hotmail.com

Dahlia Lithwick covers legal affairs for Slate, the online magazine at www.slate.com