The Swing Voter Who Matters Most

A few years ago, an academic study on judicial decisionmaking suggested that judges generally make intuitive decisions–and then sometimes override them through deliberation. In a high court where eight of the nine votes are fairly predictable, it becomes a matter of great importance to figure out how that unpredictable ninth Justice, Anthony Kennedy, makes up his mind. From this week’s cover story, it seems as though Kennedy almost reverses this process: careful deliberation comes first, then intuition tips the balance. But as Massimo Calabresi and David Von Drehle’s deeply reported story argues, Kennedy really seems to approach cases with a degree of open-mindedness that is rare. He weighs fidelity to the Constitution, then uses his best judgment to come to a conclusion. In many ways, that’s what we ask of Supreme Court Justices, whose job, wrote Chief Justice John Marshall in Marbury v. Madison in 1803, is “to say what the law is.” Calabresi interviewed dozens of Kennedy’s clerks, friends and former colleagues, many of whom said the key to unlocking the Justice’s worldview was his upbringing in Sacramento. So Calabresi went there to interview childhood friends and colleagues. Says Von Drehle: “Justice Kennedy is probably the most difficult member of the court to write about because his approach to cases is less predictable and clear-cut than his colleagues’. But that’s precisely why we wanted to dig into his story and understand him better.”

Richard Stengel, MANAGING EDITOR