In all the chatter about the arguments before the Supreme Court last week, liberal commentators appeared to be surprised. Conservatives were surprised they were surprised. The public, so much as they're following the case, may have been wondering about all the surprise, and particularly about the frequent mention of one name: Justice Anthony Kennedy. The public should get to know Justice Kennedy, as he is arguably the most powerful man in America.
Kennedy was a default choice, after Ronald Reagan's nomination of Robert Bork went down in rhetorical flames from Ted Kennedy's flame-thrower. Anthony Kennedy (no relation to Ted's family) seemed solid and noncontroversial, a mild-mannered jurist who had lived most of his life in Sacramento, Calif., and racked up legal credits in private practice, law schools, and the 9th U.S. Circuit Court of Appeals. His confirmation process went smoothly and he took his place on the Supreme Court in 1988.
He's famously not driven by ideology, and like blind men examining the elephant, various court observers have seen him leaning conservative, libertarian, or "fiercely independent." Which means you never know what you're going to get.
Kennedy has upheld restrictions on abortion, such as parental notification and partial birth, but has supported the legality of abortion on principle. He voted to strike down sodomy laws, but upheld the Boy Scouts' right to bar homosexual scout leaders. He supported gun ownership in Washington, D.C., but ruled against Louisiana's right to impose the death penalty for child rape. And he sided with the liberal half of the bench in cases involving property rights (Kelo v. New London), the right of association (Christian Legal Aid Society v. Martinez), and extending the privileges of U.S. citizens to prisoners of war (Boumediene v. Bush).
In far too many of these cases, Kennedy was the "swing vote," or the non-ideological jurist who tipped the decision. He is said to dislike intensely the "swing vote" designation, but that's what comes of eschewing "rigid ideology" (i.e., basic principles) and deciding cases on their individual merits. That's why, on any controversial or far-reaching Supreme Court case, Kennedy receives the closest scrutiny-not just his questions, but also his body language, tone of voice, and facial tics.
Like many Mr. Smiths who come to Washington, Kennedy has drifted left, and has come to rely more and more on international law for guidance. So conservatives were heartened last week by his skeptical-seeming attitude toward the arguments for Obamacare. Conventional wisdom says it will once more come down to him: Whether the federal government establishes its right to our personal healthcare decisions will very likely depend on the vote of one man, unelected and impervious to the will of the people.
We can argue to the sunset of our dying republic what the original intentions of the founders were, but I'm pretty sure they didn't intend this.