Law

Anthony Kennedy, the Justice Everyone Is Watching


President Obama greets Supreme Court Justice Anthony Kennedy before the State of the Union address.

Photograph by Saul Loeb-Pool/Getty Images

President Obama greets Supreme Court Justice Anthony Kennedy before the State of the Union address.

In Congress, log-rolling is business as usual: If you vote for my bill, I’ll vote for yours. So observers were quick to spot evidence of log-rolling on the Supreme Court in the big rulings that came on June 25—and to extrapolate what those votes might mean for the decision on the Patient Protection and Affordable Care Act.

Not so fast, says Cornell Law School professor Michael Dorf, who clerked for Justice Anthony Kennedy: Log-rolling is not how the high court works. Dorf makes two key points about the pending health-care ruling. First, justices on the Supreme Court strive to make decisions on the merits, although like all humans, they are affected by interpersonal dynamics. Second, Kennedy, the court’s swing voter, is an independent thinker and not merely a split-the-difference compromiser.

The theory that justices voted strategically in Monday’s cases to affect the Affordable Care Act vote is expressed in a Bloomberg View column by Harvard Law School professor Noah Feldman. He notes that liberal justices Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg voted with Kennedy in the majority decision that upheld a key feature of the Arizona immigration law while striking down others. Writes Feldman: “The three liberals may have been willing to give Justice Kennedy more room to maneuver than usual because they wanted to keep him close for the health-care decision.” Chief Justice John Roberts, who generally doesn’t vote with the court’s liberals, also joined Kennedy’s majority opinion. It’s possible, Feldman writes, that “Roberts, too, was hoping to bring Kennedy to his side in the health-care decision.”

Dorf, who blogs at Dorf on Law, is skeptical of that theory. “It violates the court’s internal norms for the justices to engage in log-rolling,” Dorf tells me. “It is virtually inconceivable that there was any kind of a deal in which the liberals go along with Kennedy on the Arizona case in exchange for his vote on the ACA.” (Dorf says Harvard’s Feldman never made such a strong claim; he came close, though.)

That said, Dorf says the justices do care about how they are perceived—especially Kennedy as the swing voter and Roberts as the chief justice. If they stretch one way in one vote, they might stretch the other way in the next. Dorf gives the example of former Justice Sandra Day O’Connor, who preceded Kennedy as the court’s median voter. After siding with the majority in Bush v. Gore, the decision that handed the 2000 presidential election to George W. Bush, O’Connor “became substantially more liberal” in the eyes of many observers, Dorf says. Siding with the court’s conservative wing in that monumental case “either liberated her to be more liberal, or she felt guilty,” he says.

Dorf, who clerked for Kennedy in the early 1990s, calls the justice “very independent.” “He has strong views about a relatively small number of subjects but is remarkably open-minded. His critics mistake that for wishy-washiness.”

Kennedy is “a little different from O’Connor and Lewis Powell,” his immediate predecessors as the high court’s median voter, Dorf says. Those two “were not interested in making powerful statements about the law. They would want to come up with a compromise. Kennedy has stronger views about the force of law. It’s just that those views happen to be in the center of this particular court and pretty much in the center of national public opinion.” He describes Kennedy as “a moderate California Republican” in the mold of former Republican governors Pete Wilson and Arnold Schwarzenegger.

How does Dorf think the Supreme Court will rule on the Affordable Care Act? For that, he pays attention to what the justices have said, rather than trying to divine their behind-the-scenes relationships. “I have no strong feeling,” he says. “Before the case was argued, I think—like most people—I thought it was likely they would uphold the act. After the arguments, I swung to thinking it’s more likely they would strike down at least part of it.”

Coy_190
Coy is Bloomberg Businessweek's economics editor. His Twitter handle is @petercoy.

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