“A court of one: Anthony Kennedy”

I have written this oped for the LA Times.  It begins:

Forget the debate over whether the Supreme Court has taken a liberal turn. It is not a liberal court or a conservative court. It’s a Kennedy court. On major constitutional and statutory questions, Justice Anthony M. Kennedy’s views matter more than anything else.

Liberals do have more to celebrate this term than in the recent past, from the same-sex marriage and Obamacare decisions, to a major housing discrimination case, to a surprising win for minority plaintiffs in a voting rights lawsuit. In all of those cases, Kennedy was in the majority, and all but one — Obamacare — were decided 5-4.

But there were some victories for conservatives as well. The court blocked a key environmental rule on mercury pollution. It upheld Oklahoma’s lethal injection method. And it rejected an attempt to put a Texas voter identification law on hold even after a federal court found that the legislature intended to discriminate against minority voters. Kennedy was in the majority in these rulings.

It concludes:

Driven by feeling over theory, Kennedy also has the frustrating habit of taking nondefinitive positions as he makes up his mind. He’s skeptical of racial preferences, but not so skeptical that he’s willing to completely jettison affirmative action. And so the law remains uncertain. He’s troubled by partisan gerrymandering, but is reluctant to police legislatures. And so the law remains uncertain.

It’s crazy to have major social and public policy questions depend so much on Kennedy’s whim, not to say what he had for breakfast. But it could be worse. As much as liberals would love to see Kennedy retire and be replaced by another Elena Kagan or Sonia Sotomayor, depending on the next election, we could get another Samuel A. Alito Jr. or Antonin Scalia. Then we’ll be pining for the days when Kennedy ruled America.



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