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It Keeps Coming Down To the Man in the Middle

As is custom for the justices, Kennedy did not say why he recused himself. But the court has now accepted a case that presents a virtually identical issue, and Kennedy will apparently be back to cast the deciding vote.

"There's clearly a center on this court," says Supreme Court practitioner Roy T. Englert Jr., "and it consists of Justice Kennedy."

Stevens Stays Strong

The second entry in the "more things stay the same" category is Justice John Paul Stevens.

Facing his 89th birthday next month, the court's longest-serving justice is having a year of impact. He has written two of the court's most important business decisions of the term.

In one, he said federal regulation of tobacco companies and the warnings about smoking do not mean that cigarette makers are protected from being sued under state laws governing fraudulent marketing. In the other, he said pharmaceutical companies are not shielded from suits in state court just because the Food and Drug Administration under President George W. Bush said that they should be.

Stevens dismissively wrote that the Bush administration's "recently adopted" goal of protecting the drugmakers "is entitled to no weight" because Congress had not changed the law and state laws have a traditional role in drug safety.

More than that, the gentlemanly Stevens has been an aggressive questioner at oral arguments, especially in the West Virginia case, which seemed to offend him. He even mixed it up with the always-ready-to-spar Justice Antonin Scalia.

Stevens said the case reminded him of former justice Potter Stewart's definition of obscenity: "I know it when I see it."

"I don't think we adopted his principle, did we, in the obscenity area?" Scalia said.

"The question is not whether we have but whether we should," Stevens shot back.

Scalia and Souter Speak

The court's most loquacious justice, Scalia, and one of its most reticent members, David H. Souter, both ventured out of the court recently for speeches.

Souter, 69, drew a crowd of television cameras before his rare address to the American Academy of Arts and Sciences. The interest was not what he had to say to humanities teachers but whether he would give any hints about persistent but impossible-to-substantiate rumors that he is tired of life on the court.

There were none, save this comment about how hard it is to pursue other intellectual activities while the court is in session.

"When the term of court starts, I undergo a sort of annual intellectual lobotomy, and it lasts until the following summer, when I sort of cram what I can into the summertime," Souter said. Armchair analysts can view the remarks for themselves on C-SPAN's Web site (

Scalia, meanwhile, was promoting his book, "Making Your Case: The Art of Persuading Judges," at Pepperdine University Law School and declining to give advice about how to raise nine children, saying his wife, Maureen, did most of the work.

He did have one tip, according to reports of the event:

"I don't think you have to go to soccer games."

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