- The Washington Times - Sunday, October 22, 2006


When Anthony M. Kennedy takes his seat among the black-robed justices of the Supreme Court, his presence behind the raised mahogany bench is remarkably unremarkable.

There is nothing of the buttoned-down manner of Chief Justice John G. Roberts Jr., the professorial mien of Ruth Bader Ginsburg or the biting wit of Antonin Scalia.

Genial and unassuming, Justice Kennedy poses questions without any display of theatrics. Outside the courthouse, tourists have been known to enlist his help snapping photos, unaware that they are pressing a justice into service.

Yet after 18 years on the court, at 70, Justice Kennedy has emerged in recent months as the court’s new power center. There is as much talk about the “Kennedy Court” as there is about a “Roberts Court.”

“As he goes, so will the court go on many issues,” said University of Connecticut political scientist David Yalof, who specializes in constitutional law.

Justice Kennedy, whom President Reagan appointed, long has been in the court’s philosophical center, a key vote in determining whether more liberal or conservative justices will prevail. But his pivotal role was largely overshadowed by that of fellow centrist Sandra Day O’Connor, who retired this year.

Now, Justice Kennedy has no cover.

The question being asked in this first full term of the Roberts court is whether Justice Kennedy will adjust his style or jurisprudence now that he is the lone man in the middle.

Justice Kennedy rejects the notion that his judicial approach is subject to change and finds the label of “swing justice” to be “a most unfortunate phrase.”

“Justice O’Connor didn’t like it, either,” he said in an interview with the Associated Press last week. “It indicates some sort of a vacillation, but in my own view, my jurisprudence is quite consistent. It just happens that the cases happen to swing from one side to the other of what I think is a well-grounded philosophy.”

Some would beg to differ.

“Justice Kennedy likes to wander all over the constitutional law like an errant voyager,” John Yoo, a former Justice Department official in the Bush administration, said at a recent forum. “No one knows where he is going to end up.”

In assessing where Justice Kennedy may go from here, a Supreme Court historian points to the example of former Justice O’Connor. Her early dissents on abortion and, to some extent, on race tended to be more conservative than were her opinions in later years once her vote became controlling, David Garrow of Cambridge University said.

He said she was something of a “judicial technician” who favored narrow, fact-specific decisions, while Justice Kennedy sees himself more as a philosopher and might be less likely to pull back simply because of the court’s new dynamic.

Pepperdine law professor Douglas Kmiec said he did not think Justice Kennedy would change his style “in the least.”

“I think what will happen is that we’ll come to know it more and understand it better,” he said.

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