In 19 cases during the past year, the Supreme Court split down the middle along ideological lines. The court's four conservatives—Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito—lined up on one side, and the four liberals—Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and David Souter—lined up on the other. Each time, the tie was broken by a fifth vote belonging to Justice Anthony Kennedy. On 13 occasions, Kennedy aligned himself with the conservatives. While the court is clearly moving to the right, it's obvious that Kennedy holds the balance of power.
Kennedy is known for examining his conscience as well as the law books when he decides a difficult case. And justices caught in the middle of fierce ideological disputes sometimes agonize or brood over their opinions. But sitting with a NEWSWEEK reporter in his chambers overlooking the U.S. Capitol on the day after the court's final decision of the 2006-07 term, Kennedy seemed cheerful, even enthusiastic, about his role. True, "the cases this year were more difficult than I thought they would be," he said. In closely divided cases when time is short, he added, the court's "tone becomes somewhat more acrimonious." But he laughed and held up his hands and said, "Hey, I'm a lawyer. I'm trained to argue. I love it."
He does not love being called a "swing vote." He told NEWSWEEK that he and earlier denizens of the court's center—Justice Sandra Day O'Connor and the late Justice Lewis Powell—"never liked the term 'swing vote' because it indicates that you elect to swing for the purpose of accommodating one side or the other." Indeed, in the court's most important case of the year, Kennedy refused to accommodate either side. He voted with the four conservatives to strike down racial-integration plans championed by school districts in Seattle and Louisville, Ky. But he refused to go along with the conservatives in joining an opinion by Chief Justice Roberts that exuded hostility to all race-based solutions to racial inequalities. Kennedy suggested that school boards might be able to assign students based on their race as a last resort, though only if they could show that other methods proved ineffective. At the same time, Kennedy reproached the liberals on the high court for supporting racial engineering that "may entrench the very prejudices we seek to overcome."
More than a half century after the Supreme Court required school desegregation in Brown v. Board of Education, Americans remain divided over race and by race. In the latest NEWSWEEK Poll, 35 percent of whites and 23 percent of nonwhites approved of the court's decision to limit the use of race for school-integration plans, while 29 percent of whites and 54 percent of nonwhites disapproved. The court's decision provoked an emotional dissent from Justice Breyer, who thundered that the ruling would "threaten the promise of Brown" by hindering progress toward "true racial equality." Some commentators attacked Kennedy's middle-way opinion for leaving school officials with no idea what they can legally do.
In his interview with NEWSWEEK, Kennedy did not seem much disturbed by the hubbub. He recalled how, as a Stanford undergraduate in the mid-1950s, he was given the privilege of helping escort around campus the nation's greatest civil-rights lawyer, Thurgood Marshall, who later became a Supreme Court justice. Marshall had, a couple of years earlier, successfully argued Brown. "I thought that we had solved the race problem," Kennedy recalled. "I mean, that's how little I knew about it." But he seemed more bemused than rueful about "how naive many of us were," and he went on to talk enthusiastically about the "whole heap of fascinating, difficult problems" the court faces each year.
Kennedy's critics say he is perhaps a little too eager to play the role of Wise Man in the Middle. In a biting New Republic cover story last month, Jeffrey Rosen, a George Washington University Law School professor and a widely noted court watcher, portrayed Kennedy as a pretentious moralizer with a "self-aggrandizing conception of the court's role." A few of Kennedy's former clerks interviewed by NEWSWEEK allow that he can be a little pompous. "He thinks he is the living embodiment or transmitter of the nation's bedrock values," says one, who refused to be identified criticizing his former boss. But this clerk—and all the others interviewed—portrayed him as gracious, decent, fair-minded and intellectually curious about many things ranging far beyond the law. "I would put him in the top rank intellectually," says Washington lawyer Richard Willard, who became the then Judge Kennedy's first clerk in 1975 and has remained close.
In a partisan age, Kennedy is almost bound to disappoint. "Liberals don't like him because he is conservative most of the time and extreme conservatives don't like him because he is not conservative all of the time," says Willard. Not just right-to-lifers but many conservatives were bitter when Kennedy, a Ronald Reagan appointee, voted in a 1992 decision, Planned Parenthood v. Casey, to uphold what he, O'Connor and Souter called "the essential holding of Roe v. Wade," the Supreme Court's 1973 decision giving women a right to abortion.
Kennedy can, in fact, paint with a broad brush. "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life," declared an opinion signed by Justices Kennedy, Souter and O'Connor in the Casey decision. Kennedy (who, it later turned out, drafted the language) quoted the same passage in a 2003 majority opinion striking down laws against gay sodomy. In a dissent to the court's gay-rights decision, Justice Scalia mockingly referred to this language as the "famed sweet-mystery-of-life passage." Another federal judge, Robert Beezer of the U.S. Court of Appeals, wrote in 1996 that Kennedy's formulation is "so broad and melodramatic as to seem almost comical in its rhetorical flourish."
Kennedy, 70, is tall, dapper and shows no sign of slowing down. Chief Justice Roberts has tried, so far without much success, to get the justices to speak with fewer voices. He wants them to write fewer "concurrences"—judicial opinions that, like Kennedy's in the school-desegregation case, reach the same conclusion as the majority but articulate different reasons. Asked by NEWSWEEK about this effort, Kennedy laughed and interjected, "I guess I haven't helped much. My initial reaction was going to be, 'Just let me write all the opinions'."