Politicians like President Obama, Donald Trump or Hillary Clinton may fancy themselves the kingmaker of American government. But in fact that role has been held for two decades by Anthony Kennedy.
In many important cases during his 27 years on the U.S. Supreme Court, Kennedy has provided the deciding vote in a 5-4 ruling. One example is last year’s case in which Kennedy joined the court’s four liberal justices to rule that individual freedoms granted by the Constitution make it illegal for states to ban gay marriage.
Kennedy once again cast the decisive vote in two prominent rulings announced this week — one on affirmative action, the other on regulation of abortion clinics. Each time he sided with the liberal justices.
The affirmative action ruling is the first time Kennedy ever voted for such a plan after many years of opposing them. In the other ruling, he joined the majority decision that said requiring doctors at abortion clinics in Texas to have nearby hospital admitting privileges illegally created obstacles for women who wished to end a pregnancy.
The two liberal-leaning rulings may be no surprise to some court watchers, since this year’s unexpected death of Justice Antonin Scalia left the court with only eight members, and without one of its staunchest conservatives. But Scalia’s vote would not have made a difference in either of these cases.
The real surprise, according to Georgetown University law professor David Cole’s column in The Washington Post, is that Kennedy continued to play his decision-making role on the court, especially in the affirmative action case.
Noting the justice’s longstanding opposition to the concept of using race as a standard of admission to public universities, Cole wrote that Kennedy seemed to hesitate when he had the power to kill just such a program at the University of Texas. Instead of rejecting what Texas was doing, Kennedy said university officials should be given deference in assessing the benefits of diversity programs.
Kennedy sometimes sides with the court’s conservatives, but just as often, and seemingly in a lot of big cases, he is willing to “recognize the rights of the disadvantaged,” as Cole put it.
Purists probably wish Kennedy would decide whose side he’s on. But there is something fascinating about a single member of any group who often casts the deciding vote. It is even more compelling when that single member happens to be part of the group that has the final word on the law.
This week’s rulings leave little doubt that if the executive or legislative branches of government want to make sweeping changes, it will be up to Kennedy to decide whether the changes are legal. That’s a lot of responsibility to put on the shoulders of a single justice.
Things may be different in 2017, especially if Hillary Clinton is elected president and appoints a liberal justice to succeed Scalia. That most likely would flip the philosophical balance on the Supreme Court.
But for now, the king rules.
