Supreme Court Justice Anthony Kennedy, The Most Powerful Man in America?
When President Obama reached Jim Obergefell on his smart phone after the Supreme Court ruled in a 5-4 decision Friday that same-sex couples have a constitutional right to be married and all states must recognize that right, the president told the lawsuit’s lead plaintiff that “your leadership on this changed the country.”
“I’m really proud of you,” Obama said, then pausing. “You’ve been a great example for people, but you’re also going to bring about a lasting change in this country… It’s pretty rare when that happens.”
Obama should know. His major legislative achievement, Obamacare, hung in a balance until this week. On Thursday, the Court decreed that federal Obamacare subsidies were here to stay—rejecting a right-wing challenge that would have kicked millions off their health plans if Republicans won. Kennedy sided with Obamacare. Also, Thursday, the same Court that last year gutted the Voting Rights Act—with a conservative majority concluding the nation was in a post-racial era—declared that a federal housing anti-discrimination law applied to unintended but harmful acts. Kennedy wrote that opinion.
On Monday, the Court ruled that police cannot treat people under arrest with excessive force as that violated the constitution’s ban on cruel and unusual punishment. Kennedy cast the swing vote in that case, agreeing with the Court’s liberals. And, of course, on Friday, Kennedy authored the ruling legalizing same-sex marriage in all 50 states.
As Obama said to Obergefell, it’s pretty rare when one man can make a difference that affects the country. But if there’s one man who today is arguably the most person in America, it is Supreme Court Associate Justice Anthony Kennedy, who was appointed to the Court nearly three decades ago by conservative icon Ronald Reagan. In each of the decisions cited above—giving this year’s Supreme Court term a decisively liberal tilt as it is ending—Kennedy cast the deciding vote or joined the majority.
It’s worth pausing to ponder the rulings—telling police they may not use undue excessive force on prisoners in pre-trial settings; saying that federal law can still combat unintended racism in housing; upholding Obamacare subsidies for poorer households; and declaring same-sex marriage is constitutionally protected across America. Each decision arose through a unique matrix of votes by the justices; yet they also show Americans how powerful the Court can—or cannot be—as an agent for change.
With four justices in their upper seventies or early 80s, there’s a strong likelihood that whoever is elected president in 2016 will have a unique chance to shape the Supreme Court for years. If anything, this week’s rulings—where Kennedy sided with liberal jurists—shows what a more progressive Court could mean for America.
Kennedy has not always sided with liberals. But he has been a longstanding champion of equal rights for same-sex couples, just as he has been a long-time advocate for limiting the crimes with the death penalty—especially for juveniles. On LGBT equality issues, he wrote the decision overturning the federal Defense of Marriage Act, which said marriage was between one man and one women and allowed states to not recognize these unions.
The Supreme Court, like the political sphere, can be very unpredictable. But sometimes, like this past week, the unexpected happens and American can get a glimpse of what a court that’s not dominated by doctrinaire conservatives could be like. More than Chief Justice John Roberts siding with the president and rescuing Obamacare for the second time are the votes and decisions by Kennedy.
Indeed, in a complicated case last week where the Court upheld a death penalty, Kennedy went out of his way in a dissent—which read like a blog—to note the prisoner has been held in solitary confinement for decades, which said was appalling.
“The judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them,” he concluded. “Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons.” There is truth to this in our own time.”
Today, as President Obama’s second term is coming to a close, as Congress is marked by legislative gridlock, and as 2016 presidential candidates are saying where America needs to go, there is one person who seems to be making the biggest differnce of all. It is the elected leader in the White House. It is associate Supreme Court Justice Kennedy, who clout as the Court’s swing vote looms as large as ever.