• U.S.

What Will Justice Kennedy Do?

29 minute read
Massimo Calabresi; David Von Drehle

At 6 a.m. in the Northern Virginia suburbs of Washington, when some Pentagon brass and White House aides are just rolling out of bed, Justice Anthony Kennedy is dressed in a well-cut suit and rolling down the driveway of his modest home. He is cautious at the wheel. Even when the streets and highways are empty, Kennedy obeys traffic laws. “He would never cross the street against a red light,” says a former colleague. He arrives 30 minutes later at the imposing marble temple across the street from the Capitol. Designed to appear as ancient as democracy itself even though it was built in the 1930s, the Supreme Court building is a good fit for the deliberately old-fashioned Kennedy: he is a pragmatist from postwar America set down in the middle of a polarized age. A man sometimes maddening, sometimes self-important, other times subtle, always thoughtful. A relic of a time when open-mindedness was seen as a virtue in a judge–or anyone else, for that matter.

Kennedy’s chambers reflect his fastidious and formal character. The walls are painted to complement works of art on loan from various Washington museums. His desk is free of paper. Books line the walls. Here and there are nostalgic reminders of his home, Sacramento, including a miniature casting of the statue of a Pony Express rider that sits in the heart of the old gold-rush city.

So much order and consistency. In his routine arrival at his pin-perfect office, there is little hint of the internal struggles that have marked Tony Kennedy’s quarter-century on the nation’s highest court, struggles that have left an outsize mark on American life and liberty. Over that time, Kennedy cast the pivotal vote in cases dealing with abortion, the death penalty, gay rights, the war on terrorism, campaign finance and school prayer. This tall, thin man with clear blue eyes behind rimless bifocals is the decisive figure on a court that is otherwise divided between liberals and conservatives.

Beside a massive window overlooking the Capitol sits the small wooden table where Kennedy convenes his clerks to help him weigh his judgments. At that table, Kennedy has urged them to talk about what grounds he might cite to uphold Roe v. Wade. And what path would he take to strike it down? How would he justify allowing prayer at a public-school graduation ceremony? And what would be the strongest reasons for banning it? Does the Constitution protect the rights of homosexuals to engage in consensual sodomy in the privacy of their homes? And if it does, could a state get around that by outlawing sodomy among heterosexuals as well as homosexuals? The talk around the table can go on for hours–and even then, Kennedy sometimes concludes that he can’t know if a decision is correct until he starts writing his opinion and sees what shape it takes.

Late in the afternoon, Kennedy usually leaves his chambers in time to beat the nightmarish Washington traffic, but he takes the struggle home with him and peppers the clerks with questions via his fax machine. After dinner with his wife, his hometown sweetheart from Sacramento’s leafy and well-ordered Land Park neighborhood, the Justice returns to his briefs and precedents until 9 p.m., when he turns to nonlegal reading before bedtime. Next morning, he is back at his desk, giving scarcely any sign that he is closer to a decision.

This blend of modest routine and immodest power defines Kennedy. He can be shy and ill at ease–or testy and judgmental. Sometimes he pontificates, slowing his cadence for theatrical effect. Other times he speaks with the self-effacing reticence of a genial librarian. Kennedy enjoys telling a story about a group of tourists who stopped him one day on the gleaming steps of the court and asked him to take their photograph. Not one of them recognized their shutterbug as the most powerful judge in America. This may be Kennedy in full: he likes the anonymity, and he likes the power too.

It is easy to forget that there is still a wide range of issues before the Justices–dull but important matters like pension-fund law, for example–that can be resolved amicably, without need for Kennedy’s deciding vote. But on most cases of great moment, the intellectual battlefield of the Supreme Court has shrunk to the space between this one man’s ears.

And no case is of greater moment than the fate of President Barack Obama’s signature health care reforms. With a decision expected before the court rises at the end of June, people close to Kennedy say the struggle this time centers on the question of whether Congress has the power under the Constitution to force millions of uninsured people to buy private insurance as a way of subsidizing coverage of Americans who are sick. While the Constitution gives Congress broad power to regulate commerce, this novel case asks whether the “individual mandate” goes a step too far by creating the commerce it seeks to regulate. On March 27, during the second day of argument, Kennedy put his uncertainties on display: A tax to fund health care could clearly be lawful, he observed. On the other hand, he continued, Congress seemed to cross a symbolic line by forcing people to buy something whether they wanted it or not. “I’m not sure which way the argument goes,” he said.

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.

This uneasy combination of pomp and pragmatism may not add up to a clear philosophy, but it is the product of a particular place and time. According to those who know him best, Kennedy represents the epitome of “a Sacramento person,” in the words of his friend Joan Didion, a writer and frequent visitor to the Kennedy home when she was a girl. (The future Justice was the kid brother of her close friend Nancy.) The small-town capital of a state as limitless as all imagination, Kennedy’s Sacramento was “a very reasonable place” with “reasonable values,” she says. It was “a system that worked,” in the words of journalist Lou Cannon, a California political insider who knew Kennedy’s father. In the decades after World War II, the seat of California government was a basically nonpartisan community, dedicated to “problem solving” rather than finger pointing, Cannon says. The ad hoc approach to issues favored individual power brokers who could find the middle ground. The more it fades into history, the more it is remembered nostalgically as a can-do culture nestled in a Norman Rockwell frame, a place where everything seemed possible, at least to those in power, and nothing seemed to change. “I don’t think he’s ever wanted to leave Sacramento in any real way,” says Didion. “He wants that world in Sacramento whether it exists anymore or not.”

Apprentice in the House of Warren

Kennedy’s father–also named Anthony, though everyone called him Bud–was one of those men in the middle who made Sacramento hum. A lawyer and lobbyist by trade, Bud Kennedy built his family a new home in the state capital when little Anthony was 5 years old. A lifetime later, the Justice vividly recalls the day. He was bursting with excitement because Bud promised him a ride on the moving truck. They had just gotten under way when a neighbor rushed into the street, waving a dish towel to flag them down with urgent news. It was Dec. 7, 1941, and Pearl Harbor was in flames.

The cataclysmic events that followed scarcely touched Kennedy’s new world in Land Park, a neighborhood that his boyhood friends describe with words like idyllic and magical. He grew up watching The Lone Ranger and Red Ryder in 14 matinees at the Tower movie theater and walking with his brother and sister to grade school a few blocks from home. He attended Mass on Sundays at the nearby Holy Spirit Parish church and romped with pals he remains close to more than 70 years later.

There was swimming at the whites-only Del Paso Country Club–except during the frequent and fearsome polio outbreaks–and the Kennedy home bustled with neighborhood children. Though the family wasn’t exactly wealthy, there was plenty of money for “a drum set, pinball machine and a one-armed bandit. The whole thing was all devoted to stuff for the kids to do,” says John Hamlyn, one of Kennedy’s Land Park friends. The future Justice was no athlete and joked about being thin, says another of the gang, David Dozier, but there was nevertheless a closet full of bats and balls, and Bud hung a basketball hoop over the garage. In sum: “There were all kinds of horrible things going on in the world: World War II, the Korean War, McCarthyism, the atom bomb,” recalls Joe Genshlea, a Kennedy friend. “But the life we led as kids was just great.”

What he lacked in athleticism, the young Kennedy made up for in brains. “If Tony has a persona, it’s that he was a great student,” Genshlea says. “When we were reading classic comics, he’d read Shakespeare.” Didion admits there was a trace of pretentiousness about the boy, who was always the bright star in his mother’s firmament. He could be judgmental in church. “Growing up, he was really super Catholic,” says Hamlyn. “He and I were altar boys together, and I can’t count how many times I would say something, or I was going to do something, and he would say, ‘That’s a sin.'”

By fourth grade, Kennedy was so bored in school that his father brokered an astonishing arrangement to make him the state legislature’s youngest page. If Bud Kennedy did not have enough pull of his own to make that happen, he had a colleague who certainly did. Artie Samish, the boss of Sacramento, was a huge man with an even bigger personality, a 300-pounder who knew how to throw his weight around and bragged that he controlled the California legislature like a puppet. And he did until the law caught up with him. Bud defended him in 1938. In the ’50s, Samish went to prison on tax-evasion charges.

The irony of Artie Samish is that his reign was made possible, in large part, by good-government laws passed a generation before–laws designed to weaken the established political parties. Samish and the lesser lobbyists of Sacramento stepped into the vacuum to supply the networks that weak parties could not. They built coalitions.

This was Bud Kennedy’s stock in trade. He drank often and with relish, played a mean game of poker and spat tobacco juice from the window of the family car, “which drove his wife nuts,” Hamlyn says. Gladys “Sis” McLeod Kennedy was “quite a gal” herself, says Hugh Evans, a law partner of Tony Kennedy’s before his Supreme Court appointment. A Stanford graduate, Kennedy’s mother was always ready to throw open the house for Bud’s clients, which included, over the years, the liquor and tobacco industries as well as the association of manufacturers. A lot of business got done on the back patio over highballs, and as Didion puts it, Tony Kennedy grew up around a dinner table where everyone “laughed and argued and interrupted.”

Bud supplemented his son’s public-school training with an apprenticeship in political pragmatism. The youngest page eventually grew chummy with then governor–and future Chief Justice–Earl Warren. The boy absorbed the thousand little lessons that can be learned only inside city hall or a state legislature–not just how a bill becomes law, but why this bill and not that one. Meanwhile, his father began pulling him out of school to assist him at counsel’s table in courtrooms across Northern California. Sometimes Bud worried that his precocious son was too dutiful and orderly, and once he offered the boy $100 if he would do something to get himself arrested. No dice. By the time he graduated from high school at the top of his class, Kennedy had 10 trials under his belt, and his friend the former governor was immortalized as the author of Brown v. Board of Education.

The Man from Land Park

America’s booming 1960s were a great time for bright young men to dream big and write their own tickets. But for Tony Kennedy, the world of Sacramento seemed world enough. He followed the family path to Stanford, blazed through his undergraduate courses in three years, then heeded his father’s advice to wait a year before enrolling at Harvard Law School. He spent a year in Europe at the London School of Economics. Within two years of earning his law degree, Kennedy was back home.

Bud had died suddenly, and with a certain inevitability, the son stepped into his shoes. He had married a Stanford-trained schoolteacher, as his father had done, and bought a house in Land Park just like Dad. He had his own two sons and a daughter, also like Bud, and took over his father’s practice. With his falsetto laugh and penchant for quoting Shakespeare, the new Anthony Kennedy was a far cry from the tobacco-chewing version, but in other ways the DNA prevailed. His boyhood education was not wasted. Kennedy prospered as a lawyer and lobbyist.

For Capitol Records, he drafted an exemption from certain sales taxes that the legislature approved, a bit of craftiness worth more than $1 million to one company in the LP-crazed ’60s. Kennedy was retained by the giant distiller Schenley Industries Inc., a former client of his father’s. Occasionally Kennedy, it was reported, handed out campaign contributions from some of his clients, a practice later banned in California, and he thrived, joining such exclusive clubs as the Del Paso Club, the Olympic Club in San Francisco and the Sutter Club, a block from the state capitol.

Land Park gave Kennedy a sense of security and confidence, his friends say, which reveals itself in his willingness to go his own way as a judge. “I think it affects him a lot,” says Genshlea. “The secure background goes into his ability to speak his mind.”

The lessons he learned as a working lawyer still feature prominently in his skull sessions with the clerks. Nearly every veteran of Kennedy’s chambers interviewed for this article recalled the Justice’s citing his experiences in front of a particularly disagreeable judge or intractable zoning board. This familiarity with local laws and concerns sets him apart on a court loaded with former government lawyers, law professors and appellate specialists. And it was, as things turned out, the key that eventually opened the door to the high court.

In 1967, a new governor named Ronald Reagan arrived in Sacramento, and soon Kennedy was doing assorted legal work for members of Reagan’s staff. One thing led to another, and by 1973, with Reagan’s eye on a higher prize, the smart and practical Kennedy was put in charge of drafting an amendment to the California constitution that would curtail the power of state government to tax and spend. This unsuccessful initiative, known as Proposition 1, nevertheless became a starred credential on Reagan’s presidential rsum. In return, Governor Reagan arranged for Kennedy to be appointed to the Ninth Circuit Court of Appeals by then President Gerald Ford. At 38, Kennedy became the youngest Court of Appeals judge in the country.

Meanwhile, the boy who had been so bored in school became an enthusiastic teacher. In his constitutional-law classes at Sacramento’s McGeorge School of Law, Professor Kennedy discovered a flair for the dramatic. For his lecture on the Fourth Amendment, which limits government powers of search and seizure, he arranged to have the chief of the campus police burst into the room and slap cuffs on him. To mark the Constitution’s bicentennial, he donned a powdered wig and adopted the guise of James Madison. Kennedy came to admire the charismatic and tireless dean of the school, Gordon Schaber.

It was Schaber’s ambition to build McGeorge from a night school into an internationally respected institution. This he accomplished, with Kennedy’s help, and in the process he made Kennedy a close friend. Somehow, without a word spoken on the subject, Kennedy came to understand that this friend was living the difficult secret life of a gay man in 1970s America. “I don’t see how it could not have some impact” on Kennedy’s later rulings in favor of gay rights, says current McGeorge professor J. Clark Kelso, a former Kennedy clerk. Kennedy tries to reconcile the past with the future, says Didion, “while at the same time being fully aware that it’s a hard accommodation to make. And he knows that everything is not going to dovetail exactly.”

In 1980, Kennedy’s sister died of cancer; his mom followed the next year from heart failure. Then soon after, his brother Tim drowned in a surfing accident. In a blur of grief, at 45, Kennedy found himself the lone survivor from that bustling hive on East Lincoln. Rather than sell the place and efface its memories, he moved back into the house where he grew up. And it was there that he was living when he got the call from Ronald Reagan’s White House in 1987 to be on the Supreme Court.

The Arbiter

Kennedy was an accidental Justice, Reagan’s third choice after the controversial Robert Bork was blocked by Senate Democrats and Douglas Ginsburg, an appeals-court judge, withdrew his nomination in a kerfuffle over past marijuana use. Kennedy had been a cautious judge on the Ninth Circuit, hewing closely to established doctrine. Cannon recalls meeting Kennedy at a party around the time of his nomination. Remarking on the Bork fireworks, Cannon said he had been struck by the nominee’s candor under questioning by hostile Senators. Kennedy’s reply demonstrated precisely why the rattled Administration had turned to him. “Sometimes,” he said smoothly, “you can be a little too candid.” Those were the words of a man headed to a quick and unanimous confirmation.

Kennedy’s background and demeanor suggested that he would not be much of a change from the man he replaced, the center-right lawyer from Richmond, Va., Lewis Powell. Broadly speaking, though, Kennedy has been more conservative than Powell, making him part of a strong rightward shift in the court that began with Richard Nixon, resumed with Reagan and continued under the Bushes. In his early years, Kennedy voted most often with the rock-ribbed Chief Justice William Rehnquist. But Kennedy’s conservatism is a different species from the better-defined doctrines of Justices on the right like Antonin Scalia and Samuel Alito. Their search for the fixed and permanent meanings of the Constitution calls to mind the late William F. Buckley’s notion of conservatives “stand[ing] athwart history, yelling ‘Stop.'” Kennedy, by contrast, has proved to be a cautious conservative who nonetheless believes that history moves forward and the Constitution must move with it. These two ideals–of preserving what is best about the past while making way for the future–frame many of the controversies that have come to define Kennedy’s career as the least predictable member of the current court.

The 1991–92 term was a watershed. On two major cases, Kennedy’s internal struggles to find the right balance led him to break with his fellow conservatives. He made 5-4 majorities in favor of further limiting school prayer and, still more momentous, entrenching the right to abortion. In both cases, he provoked scathing responses from the sharp-penned Scalia, who homed in on the lofty but untethered rhetoric that would become Kennedy’s signature in difficult cases. Kennedy’s ruling that a prayer at high school graduation violates the rights of nonbelieving students was “conspicuously bereft of any reference to history,” Scalia complained. Even more irritating for Scalia was a purple passage in the abortion opinion that conservative commentators would mock for the next 20 years. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” Kennedy wrote.

Apart from the vague verbiage, however, Kennedy’s decisive opinion in Planned Parenthood v. Casey announced the young Justice’s intention to be the court’s practical problem solver–and, by extension, grand arbiter of America’s stickiest issues. On one hand, he strengthened the precedent of Roe v. Wade by declaring that case to be settled law. Next, he replanted the right to abortion in what he believed to be a stronger pot. Instead of grounding abortion in a “right to privacy,” which is never mentioned in the Constitution, Kennedy declared it to be part of the well-established right to liberty.

But then came a twist that would become apparent in the years that followed. When Kennedy and his colleagues said that this liberty could not be subjected to “undue burden[s],” he created room for future limitations on abortion rights, provided the burdens they placed on women’s liberty were not “undue.” Since then, Kennedy has given his majority-making blessing to such limits as mandatory waiting periods and a ban on so-called partial-birth abortion. Boiled down, Kennedy’s abortion rulings have made the right to abortion both stronger and smaller–exactly the sort of give-a-little, take-a-little deal that pragmatists might have cut on a Sacramento patio back in the day. In this way, he meant to settle the debate, yet society’s argument over abortion rages on.

He seemed to have had something similar in mind in 2005, and again in 2008, when he used his decisive vote to outlaw the death penalty for minors who commit murder and for rapists of children. As with the abortion cases, Kennedy took command of a polarizing issue and tried to find middle ground. Once again, his approach drew fire from his conservative colleagues–especially when Kennedy cited laws from other countries to support his holding that these punishments have come to violate “evolving standards of decency.” Scalia again wrote the dissent. Kennedy’s majority “proclaims itself sole arbiter of our Nation’s moral standards,” he sniffed, “and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures.” Alexander Hamilton, Scalia implied, was rolling in his grave.

If Kennedy stuck to the middle in every hot case, he would be a much easier jurist to understand. But he doesn’t. Consider his 2003 opinion in Lawrence v. Texas, a landmark gay-rights case. In striking down laws that banned homosexual sodomy, Kennedy declared that society cannot apply the moral judgments of the majority to the consensual sexual behavior of adults. In language sure to be quoted back to him when the question of gay marriage reaches the court this year or next, Kennedy wrote broadly, “Liberty protects the person from unwarranted government intrusions” and “includes freedom of thought, belief, expression, and certain intimate conduct.” Justice O’Connor added a sixth vote to Kennedy’s majority, but she declined to sign on to his sweeping declaration of bedroom liberty. Instead, she took a more moderate path, writing that states may criminalize sodomy as long as the law treats all citizens equally. She predicted that heterosexual voters would not support such bans if they were applied to everyone, and thus–given a bit of time and patience–elected lawmakers would find their way to the same end result that Kennedy sought. There was no need for a dramatic judicial intervention. O’Connor, a former state legislator, was content to let the pragmatism of voters chart the way forward, but in this case Kennedy preferred to follow his own convictions regarding the nature of human liberty.

The Fight for Kennedy’s Favor

Like the other justices, Kennedy relies on his clerks to help him think through decisions. The four young lawyers divide the term’s cases and summarize each one in a short “bench memo” of two to 10 pages. As the day approaches when a case will be argued, Kennedy convenes his clerks at the table beside the window. “He wants to talk it over. He wants the roundtable,” says one recent clerk. “He’s actually there in the conversation, saying, ‘I’m worried about this,’ and ‘What about this?'” Kennedy keeps an easel with an oversize pad of paper handy, and on particularly complicated cases, the clerks will “try to write it out for him when he is trying to visualize it.” Many clerks interviewed for this article can recall times when the entire table appeared to agree on the proper outcome, only to have the Justice decide the opposite. “You don’t know how he’s going to go,” one recent clerk says.

Alex Kozinski, a former clerk who is now chief judge of the Ninth Circuit Court of Appeals, says Kennedy’s agonized thought process is a sign of open-mindedness and empathy, not indecision. “It’s getting fully into the mode of understanding the implications of an important decision,” Kozinski says. Kennedy mulls not only the theoretical basis of a decision but also how it might play out in the real world. “His way of making up his mind in tough cases frequently was for him to try out an idea for size, like trying on a hat, you know,” says Kozinski. “Wearing it for a day, saying, ‘Well, maybe I don’t look so good in a Stetson. I think I’ll try a sombrero instead.'”

Given Kennedy’s power, legal minds from across the political spectrum spend considerable time and effort to influence his choice of clerks each fall. Who sits at Kennedy’s table, after all, could tip the scales of justice on any number of cases. The selection process seems as ungovernable as Kennedy himself. A panel of three former clerks prescreens the candidates. Often the screeners include Kozinski and another clerk from Kennedy’s first year on the bench, Washington litigator Richard Willard. The screeners tend to lean in a conservative direction, but somehow the Justice usually ends up with his clerks arrayed across the political spectrum. This term, he has two clerks who are said to be left of center, one moderate conservative and one who is more to the right. Two of the clerks formerly served with lower-court judges who weighed the Obamacare cases as they rose through the appellate system. “With that spectrum, he’s going to have all the arguments in front of him,” a recent clerk says.

Lawyers also seek to sway the key Justice by crafting what are known as “Kennedy briefs”–arguments that borrow lavishly from Kennedy’s prior rulings in hopes of striking a pleasing chord in the man from Sacramento. Often, these briefs are written by former Kennedy clerks. But no matter how thickly they stuff the briefs with Kennedy’s own language, the outcomes remain unknowable. After all, this is a man who has been playfully dubbed “Flipper” by former law clerks, referring to the friendly dolphin in the 1960s sitcom. And echoing Kennedy is not always easy: he thinks he is a good writer (and so does Didion), but lawyers, who live and die by precision of thought, detest his flights of rhetoric and find it awkward to emulate them.

Opponents of Obamacare focused their Kennedy briefs on a number of opinions in which he maintained the importance of limiting government intrusions into individual liberty. Kennedy has extolled the fact that the Constitution weakens the power of government by dividing it in two ways: the “horizontal” separation of federal powers among the three branches and also the “vertical” separation of federal authority and state authority. “Two governments accord more liberty than one,” Kennedy wrote in a 1995 opinion agreeing that Congress overstepped its authority when it banned firearms near schools. Latching on to this idea, the attorneys argued that only states–not the federal government–have the authority to mandate the purchase of health insurance.

Defenders of the health care law, on the other hand, appealed to Kennedy by quoting another statement from the same opinion: “Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy.” They also noted that as recently as 2005, he joined an opinion by former Justice John Paul Stevens that upheld very broad federal authority to regulate individual conduct under the Constitution’s commerce clause. That case, Gonzales v. Raich, dealt with the government’s prosecution of a California woman who grew her own marijuana and used it as a medicine in compliance with state law. Angel Raich did not purchase the dope, nor did she sell it, nor did she or the marijuana ever leave California. Nevertheless, Kennedy agreed that the prosecution was a valid exercise of federal power over interstate commerce. A power as broad as that would surely allow Congress to require the purchase of health insurance, the pro-Obamacare lawyers argued.

How will Kennedy come down on this one? It’s possible that even his fellow Justices have no idea. Direct contact among the Justices is surprisingly limited. They prefer to communicate primarily by handwritten notes and e-mail. Most of their interaction comes during their highly secretive weekly conference, when they express their initial positions on recently argued cases and begin the process of drafting opinions. “People may imagine the Justices having lengthy debates about the outcome,” says former Kennedy clerk Bradford Berenson, but such exchanges are rare. The opinions expressed at conference don’t often change, but Kennedy changes his mind more than most. In one famous incident, Scalia went for a walk with Kennedy before the Casey abortion case was decided and came away from their heart-to-heart discussion confident that they would vote together. The next day, Kennedy went the other way.

An Uncertain Justice

As consequential as the health care decision will be, the role of Kennedy on the Supreme Court raises an even larger question. Is there something wrong in a democracy when one person holds so much sway over so many people? As year follows year and Kennedy remains the one key vote, his power compounds. More and more cases are decided based on his idiosyncratic values, and those holdings become precedents that future courts must respectfully contend with.

But Kennedy is not the only person responsible for this state of affairs. He would not have his majority-making power if his eight colleagues were not so rigid in their views. And the eight would not be so adamant if the political parties had not decided over the past generation that only carefully groomed, philosophically pure ideologues should be placed on the high court. Like the rest of the government, the Supreme Court has become polarized, increasingly unable to rise to the American tradition of splitting the difference, finding a compromise, muddling through.

In the dueling opinions of the court’s four Montagues and four Capulets, America’s most contentious issues are often portrayed as simple matters of right and wrong. Scarcely a hint is ever given that reasonable people might disagree. Chief Justice John Roberts rang the gong of certainty in a 2007 case dealing with public-school-desegregation plans. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he declared. Dissenting Justice Stephen Breyer was equally blunt from the other side of the ramparts: “This cannot be justified in the name of the Equal Protection Clause.”

By contrast, Kennedy’s opinion in that case–like so much of his work–wrestled openly with the complications and nuances of a tough call. The long and admirable effort to eliminate discrimination and segregation in American life has always been in tension with the nation’s ideal of color-blind equality in which no policies are based on skin pigment, he wrote. And it will continue to be that way.

Didion says Kennedy gets wistful now and then about the life he left behind in Sacramento. “At my niece’s wedding, he said to me, ‘Everybody I care about in this world is in this room. Give me a 5 stamp!'”–a 1950s-era way of saying you’re ready to quit your job by mailing in your letter of resignation. Until he writes that letter and finds that stamp, though, America will live with its uncertain Justice.

TO TRY TO READ KENNEDY’S MIND, GO TO time.com/justicekennedy

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