It Keeps Coming Down To the Man in the Middle

By Robert Barnes
Washington Post Staff Writer
Monday, March 16, 2009

Justice Anthony M. Kennedy has taken over the Supreme Court. Again.

You thought you already knew that? It was easy to get the impression from the flurry of landmark decisions that flowed from the court at the end of the term last summer.

Kennedy was the only justice in each majority as the divided court ruled out the death penalty for child-rapists, found in the Second Amendment the individual right to a firearm and provided constitutional protections to the detainees held at Guantanamo Bay, Cuba.

But last year was something of a slump for Kennedy. According to the folks at, which keeps meticulous records of such things, Kennedy prevailed in "only" 86 percent of the cases.

The year before, as the court faced its first full term with Chief Justice John G. Roberts Jr. at the helm and Justice Samuel A. Alito Jr. taking the seat vacated by Sandra Day O'Connor, Kennedy became the essential justice. He was on the losing side of only two of the 72 cases the justices decided. He was in the majority in every one of the 24 cases decided by a 5 to 4 vote.

So far this term, with the court announcing decisions in about a third of its cases, Kennedy has a perfect record.

The caveats: It's early. The court's most divisive cases are yet to come. And much of what the court has done so far is to get the easy ones out of the way. Of the court's 28 decisions this term, justices have been unanimous in the outcome 13 times.

Still, Roberts assigned Kennedy the task of writing the plurality opinion when the splintered court narrowed the scope of what's required under the Voting Rights Act when governments create electoral districts to protect minority voters' rights.

And, with some of the court's most notable decisions and arguments still to come, Kennedy's impact will increase.

Although the tone of an oral argument is not always predictive, few could have left the court's recent consideration of whether a West Virginia Supreme Court justice should have recused himself in a matter involving a campaign supporter thinking that Kennedy would not decide the case.

Likewise, it is hard to imagine that Kennedy will not play the key role in the court's upcoming case on the constitutionality of the linchpin of the Voting Rights Act, the section that requires states with a history of racial discrimination to get approval from the federal government before changing voting laws.

And there's one case on the docket that practically belongs to Kennedy. It is about the circumstances in which public school systems must pay for the private schooling of children with disabilities. Kennedy recused himself when the court tried to decide the issue before, and it split 4 to 4.

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