Uncertain Justice

Justice Anthony Kennedy may hold the key vote in four major cases next month.

  • Share
  • Read Later
Charles Dharapak/ REUTERS

U.S. Supreme Court Justices Chief Justice John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan (L-R) await the start of President Barack Obama's State of the Union speech on Capitol Hill in Washington, February 12, 2013.

In June, America’s collective mind turns to weddings, summer vacation, and… the mysteries of Anthony Kennedy’s jurisprudence. The Supreme Court often defers its weightiest decisions until the last days of their spring session because those cases take the longest to negotiate. Or maybe it’s because the justices are predisposed to drama. Either way, this year is no different: the deciding votes in four of the biggest cases are expected in the coming month. And as in past years, Justice Kennedy may hold the key to how they come out.

In one gay rights case, the Justices will decide whether it is unconstitutional for the Defense of Marriage Act to restrict marriage to one man and one woman; in another, they’ll rule whether the people of a state that allows same-sex marriage can vote to ban it. In two race-related cases, the court will decide whether UT-Austin can use racial quotas in pursuit of diversity, and whether those parts of the 1965 Voting Rights Act that give Washington tighter election oversight in states with histories of racism are outdated.

(PHOTOS: A Life in Photos: Justice Anthony Kennedy)

Kennedy has provided the swing vote on these issues in the past, and may again in June. On Tuesday the court handed down 5-4 rulings in two lower-profile cases on which he cast the deciding vote. Figuring out how he will vote remains one of Washington’s perennial obsessions. Last year, David Von Drehle and I profiled Kennedy and concluded that the hunt for a consistent judicial philosophy that could explain Kennedy’s decisions was hopeless. “There is no grand unified theory for Justice Kennedy’s jurisprudence,” said Viet Dinh, a former Bush administration Justice Department official and top Supreme Court lawyer.

We did find, however, that Kennedy’s decisions made more sense when viewed against his formative years in Sacramento, first as a child in the idyllic mid-century world of his Land Park neighborhood, and later as a lawyer and lobbyist in the state capital. For example, in the 2010 Citizens United case Kennedy wrote that, “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” It’s a lot easier to understand that fairly radical assertion when you know that in the 1960s he made a living in part by handing out campaign contributions to state legislators from some of his clients, a practice later banned in California.

What does Kennedy’s past suggest about his position in the four big pending cases? Kennedy like most justices throughout American history, likes to be on the right side of history, and as Von Drehle wrote in March, gay marriage seems to have the momentum of history behind it. Kennedy earned his bona fides as a constitutional lawyer when he was plucked from obscurity to teach night courses at the McGeorge School of Law by its Dean Gordon Schaber, whom Kennedy later learned was secretly gay. “I don’t see how [Schaber being gay] could not have some impact” on Kennedy’s later rulings in favor of gay rights, current McGeorge professor J. Clark Kelso, a former Kennedy clerk, told us last year.

(MORE: Why the Supreme Court Is Likely to Rule for Gay Marriage)

Kennedy did have a formative experience with plebescites of the kind at the heart of the California gay rights case, having come to the attention of then-Gov. Ronald Reagan by helping draft the failed Proposition 1 that would have amended California’s constitution to limit state government’s power to tax and spend. But its hard to say whether Kennedy would conclude statewide propositions were a good, bad or indifferent way to make law from that experience. More important on balance, is the fact that Kennedy’s rulings in past gay rights cases, and his questions during arguments in the current cases, suggest he will lean in favor of gay marriage protections.

Kennedy’s experience with race is less clear-cut. Land Park was not an overly diverse place in the 1950s. Kennedy has powerful memories of the deportation of Japanese-Americans from Sacramento during World War II. Like many people in the 1960s he belonged to several all-white clubs in Sacramento. As a judge, his views on affirmative action have been nuanced. In a 2007 case that split on hard ideological grounds among the other justices, Kennedy found, we wrote, that “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.”

As court watchers learn every June, however, it’s futile to try and guess how Kennedy will come down. To get a fuller sense of him and his background, read the whole piece here.

PHOTOS: Meet the Supremes

MORE: What Will Justice Kennedy Do?