How Anthony Kennedy’s Swing Vote Made Him ‘the Decider’

Efforts to fit Kennedy’s major opinions into a clear, coherent philosophy have met with little success. He generally sides with the court’s conservatives but is not tethered to any particular constitutional doctrine. ‘There is no grand unified theory for Justice Kennedy’s jurisprudence,’ says Viet Dinh, a leading conservative court watcher whose law partner Paul Clement argued the case against Obamacare. Liberals are relieved there’s one Republican nominee on the court whom they can reach with their arguments.

‘It is important to have someone who approaches each case with an open mind and who agonizes about trying to make the right decision, instead of trying to fit the case into some formulaic box,’ says Neal Katyal, Obama’s former Solicitor General. Kennedy is often compared to his former partner in the middle, retired Justice Sandra Day O’Connor.

But whereas O’Connor carefully crafted narrow rulings for individual cases, leaving tomorrow’s decisions for tomorrow, Kennedy has a fondness for grand and sweeping statements — like this one from his controversial ruling in the Citizens United campaign-finance case: ‘independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.’ Never? With this broad generalization, which seemed to go beyond the specific question of free speech at the heart of the case to bless every variety of so-called independent expenditure — including those not yet dreamed up by Washington pols — Kennedy opened the door to the very super PACs that now seem hell-bent on proving him wrong.

Supreme Court Associate Justice Anthony Kennedy may be the most influential person in American life today.

His court routinely issues decisions affecting life, death, liberty, speech, religion, property, voting, war, treaties and terrorism. Roughly one-fourth of those decisions — usually the big ones — are close calls, with the court dividing 5–4 and Justice Kennedy, 75, siding sometimes with his liberal colleagues and sometimes with the conservatives, nearly always being the decisive vote. He has been the swing vote in the court’s abortion, death-penalty, discrimination, campaign-finance and criminal-procedure cases. One year, in fact, he was 24 for 24 in 5–4 cases. So crucial is his vote that lawyers regularly pitch their arguments in close cases overtly to Justice Kennedy.

In the nearly 25 years since his appointment, over the course of five presidencies, Justice Kennedy’s convictions and unique sense of liberty, equality and justice have placed an indelible and enduring stamp on American life and institutions. President Obama’s signature health care legislation, and possibly his re-election next November, may stand or fall based on Justice Kennedy’s vote in the case, argued in March, that will likely be decided in June.