Kennedy Reigns Supreme on Court

Justice Anthony M. Kennedy's impact is likely to grow next term. (Melina Mara/twp - The Washington Post)

Indeed, Kennedy is disliked by many conservatives because he has voted with liberals to uphold gay rights and abortion rights, and to strike down the juvenile death penalty.

But since O'Connor retired from the court Jan. 31, and Alito, who replaced her, has lived up to his conservative billing, Kennedy has been all alone as the swing voter -- with the added clout, and added pressure, that implies.

O'Connor used to tell audiences that, at the court, "we decide what cases to hear, and then we decide 'em." Though she often ruled only narrowly, she did not agonize.

Kennedy, by contrast, has been known to brood or to switch his vote in the middle of a case -- though he is more inclined than O'Connor was to rule broadly once he comes to a conclusion. He is a passionate free-speech advocate, and has a consistent record of opposing affirmative action.

While O'Connor saw herself as a fact-oriented problem-solver, Lazarus says, Kennedy "views himself as a major intellectual force."

More than some other justices, "Kennedy sees real values in conflict in the court's cases, and it's a question how you negotiate it," said Neil Siegel, who served as a Supreme Court law clerk in the 2003-2004 term and now teaches at Duke University's law school. "Sometimes he does it well and skillfully, and sometimes he just can't make up his mind and the legal system gets stuck in a kind of vertigo."

In the military commission case, Kennedy ruled unequivocally, joining almost all of Stevens's broad opinion. His few reservations came in a concurring opinion that also contained Kennedy's admonition that "concentration of power puts personal liberty in peril of arbitrary action by officials."

But at other times this term, Kennedy cut difficult issues very fine, drawing criticism from his colleagues.

In a key case on the scope of the Clean Water Act, Kennedy refused to join either the conservatives, who voted as a bloc to scale back federal power to regulate wetlands, or the liberals, who wanted to leave it intact.

Kennedy instead wrote a long opinion of his own. He agreed with the conservatives that a lower court had mistakenly allowed the federal government to block development on two Michigan properties, but disagreed with them about why. He said the lower court should reconsider the issue under a new legal test -- one that most analysts thought would end up producing the same result the liberals wanted anyway.

Kennedy's opinion would not change wetlands protection in the long run, Stevens wrote in a dissenting opinion joined by the three other liberals, but "will have the effect of creating additional work for all concerned parties."

Scalia, joined by the three conservatives, called Kennedy's proposal "perfectly opaque."