Bloomberg News

Kennedy’s Pivotal Vote Focuses on Freedom as Court Ruling Looms

June 14, 2012

Anthony Kennedy has cast pivotal votes at the U.S. Supreme Court on terrorism, school integration, clean water, the death penalty, gun rights, abortion and campaign finance. Health care may be next.

By month’s end, the high court will determine the fate of President Barack Obama’s health-care law, designed to extend coverage to at least 30 million uninsured Americans. The decision may rest with Kennedy, the court’s swing vote since Justice Sandra Day O’Connor retired in 2006.

“Justice Kennedy is the axis around which the court spins in a case like this,” said Tom Goldstein, an appellate lawyer whose Scotusblog website, sponsored by Bloomberg Law, tracks the court. “On this closely divided court, someone inevitably has to be the center vote, and he is consistently it.”

The case marks the first time the high court has considered tossing out a president’s defining legislative accomplishment in the middle of his re-election campaign. Three days of arguments in March suggested the nine-member court will divide along ideological lines, with Kennedy and perhaps Chief Justice John Roberts casting the deciding votes.

For Kennedy, the answer may turn on whether he sees the law as too intrusive, particularly the requirement that Americans either get insurance or pay a penalty. The 75-year-old justice has long described individual freedom as his paramount constitutional value -- whether the underlying issue is abortion, gay sex, detainee rights or federal power.

The question now is whether Kennedy will perceive the health-care law as such a threat to liberty that it warrants being struck down -- putting new restrictions on Congress’ power to deal with nationwide economic issues. With no direct precedent controlling the outcome, he could go either way.

‘Affirmative Act’

A group of 26 states and a small-business trade group say the insurance requirement in the Patient Protection and Affordable Care Act goes beyond Congress’ authority to regulate interstate commerce.

During arguments, Kennedy focused on the prospect that the government would be ordering people to take action, a power beyond anything the high court has allowed.

He told U.S. Solicitor General Donald Verrilli, the Obama administration’s lawyer, that the law “requires the individual to do an affirmative act” by buying insurance.

“That changes the relationship of the federal government to the individual in a very fundamental way,” Kennedy said.

At the same time, he made clear he understood the core of the administration’s argument: that the requirement is crucial to the law’s aim of using the private insurance market to help achieve universal coverage. Without the mandate, the government says, premiums would soar and people would lack an incentive to get insurance before they became sick.

French Cuffs

“The young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries,” Kennedy said. “That’s my concern in the case.”

The Sacramento, California, native has been a justice of contradictions and tensions. He is a centrist who speaks of absolutes and deeply held moral principles. He’s reserved on the bench, asking only a handful of questions in each case, even as he dresses with a certain flair outside the court, sporting French cuffs and pocket handkerchiefs.

A lover of literature, Kennedy is especially fond of George Orwell’s “1984,” a novel that fueled his passion for liberty. The book, which portrays a totalitarian regime bent on pervasive surveillance and control of its citizens’ minds, “is a powerful reminder that governments want to plan your destiny,” he has said.

Third Choice

Kennedy has been a swing vote from the moment he took his seat in 1988, succeeding Justice Lewis Powell, who himself had played that role on the court until his retirement the previous year.

Kennedy was Republican President Ronald Reagan’s third choice for the Powell slot, chosen in part because he wasn’t controversial. The Senate had just rejected the nomination of Robert Bork, and Reagan’s second selection, Douglas Ginsburg, had withdrawn amid revelations he had smoked marijuana as a law professor. The Senate voted 97-0 to confirm Kennedy.

Early on, Kennedy developed a reputation for being indecisive. During the court’s 1991-92 term, he changed the outcome in two high-profile cases by shifting his position in the middle of the court’s deliberations, according to papers released in 2004 from the files of the late Justice Harry Blackmun. Kennedy voted with the court’s liberal wing to block clergy-led prayers at public school graduation and then to reaffirm abortion rights.

‘Flipper’ Parody

The shifts prompted the justices’ law clerks to poke fun at Kennedy during their annual skit at the end of that term by playing the theme song to “Flipper,” the 1960s television show about a dolphin.

The characterization is unfair, said Bradford Berenson, a Washington lawyer at Sidley Austin LLP who clerked for Kennedy during the court’s 1992-93 term.

“In my experience, Justice Kennedy never had true difficulty making up his own mind and knows his own mind quite well,” Berenson said.

That’s not to say Kennedy always reaches decisions quickly. As in health care, his questions often suggest he sees both sides to the case -- and may still be struggling to settle on a conclusion.

Kennedy likes to “try on the different parties’ position for size” before the argument, Berenson said. “He’ll try to sit with each side’s view for some period of time and see how it feels.”

Mocked by Scalia

Nowhere is Kennedy more self-assured than when discussing individual liberty, a topic that at times prompts him to write with sweeping language.

“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,” he wrote in the 1992 abortion case.

He used the same line when he wrote the court’s 2003 opinion that said consenting adults have a constitutional right to engage in private homosexual acts. Justice Antonin Scalia mocked the sentence in his dissent as Kennedy’s “famed sweet- mystery-of-life passage.”

Liberty serves for Kennedy as the driving force behind the constitutional limits on the federal government. He has written that a clear line between federal and state authority is needed so citizens know which to hold accountable for infringing upon their freedoms.

Ideological Center

“To Justice Kennedy, federalism is a means to an end, which is individual liberty,” said Nicholas Quinn Rosenkranz, a former Kennedy law clerk who teaches constitutional law at Georgetown University Law Center in Washington.

That view matters because Kennedy sits ideologically between the court’s four other Republican-appointed justices -- Roberts, Scalia, Samuel Alito and Clarence Thomas -- and its four Democratic appointees -- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. In the current term, Kennedy has been in the majority 95 percent of the time, more than any other justice.

It’s a position that gives Kennedy leverage even beyond his single vote. In their briefs, lawyers cite his opinions liberally as they vie for what may be a crucial vote.

Colleagues trying to preserve 5-4 majorities must accommodate his views or even let him write the opinion himself. Kennedy wrote the majority opinion in the landmark 2010 case that said corporations could spend unlimited sums to influence federal elections.

Stable Record

His voting record shows Kennedy to be one of the most consistent justices, said Lee Epstein, a law and political science professor at the University of Southern California in Los Angeles.

“He hasn’t drifted much to the right or the left relative to some other justices,” said Epstein, who analyzed voting patterns on the court over the past half-century in a 2007 study.

What that voting record means for the health-care case is a matter of guesswork.

“You have on one hand strong libertarian instincts that might incline him toward striking down the individual mandate,” Berenson said, “and on the other hand, strong protective instincts toward the institutional legitimacy of the Supreme Court, which might incline him toward upholding it.

‘‘How those competing instincts will resolve themselves inside of Justice Kennedy is very difficult to predict.’’

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net


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