Kennedy Emerges As High Court's Heavyweight

Kennedy

Supreme Court Justice Anthony Kennedy on Capitol Hill on March 8, 2007. Chip Somodevilla/Getty Images hide caption

itoggle caption Chip Somodevilla/Getty Images

In a sharply divided Supreme Court, it's often the justice in the middle, the so-called swing justice, who has the most influence.

On the current Supreme Court, that role has been taken by Justice Anthony Kennedy. "He is just the absolute center of this court," says journalist Jeffrey Toobin, author of The Nine: Inside the Secret World of the Supreme Court. "This court is dominated by Anthony Kennedy in a way that no justice has dominated a court, frankly, in my knowledge or experience."

An Outsize Role

Toobin says that Kennedy, appointed to the high court in 1988 by President Ronald Reagan, has played a stronger role than Sandra Day O'Connor or Lewis Powell, two of his predecessors who were widely viewed as being swing justices.

His votes made him the decider in a number of this term's most important decisions, including the gun rights, Guantanamo and death penalty cases.

In the first, Kennedy voted with the court's conservative wing to strike down a Washington, D.C., handgun ban while for the first time interpreting the Second Amendment to give individuals the right to own a gun for self-defense.

In the other two cases, Kennedy sided with liberal justices to strike down the death penalty for child rapists and to rule against the Bush administration on its treatment of detainees in Guantanamo. For Toobin, decisions in those areas of capital punishment and executive power are illustrative of Kennedy's personality and background.

"Kennedy is mostly a conservative, but he is not entirely a conservative," says Toobin. Pointing to Kennedy's death penalty decisions, Toobin says, "He is definitely not sympathetic to the death penalty the way the rest of the conservatives are."

Foreign Travels Influence Decisions

Toobin thinks the most interesting aspect of Kennedy's personality emerges from his frequent travels. Kennedy looks to international law and custom for guidance, an approach that puts him sharply at odds with his conservative colleagues. "He is very much a part of the international network of judges," says Toobin.

That internationalism, suggests Toobin, is a big part of Kennedy's Guantanamo rulings. "This is the fourth big case where the Supreme Court has ruled against the Bush administration on the Guantanamo issue," Toobin observes. "Kennedy has been with the liberal majority in all those cases.

"I think his connection to the international world, where the belief in the Geneva conventions and international institutions is so strong, has had a big impact on him."

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