Health care case puts spotlight on Justice Anthony Kennedy, the Supreme Court's swing vote
WASHINGTON — When Elizabeth Price Foley, a law professor at Florida International University, sat down to write a brief for the blockbuster health care case before the U.S. Supreme Court this week, she focused her argument on only one of the nine justices, the man known as the decider.
Justice Anthony Kennedy is the court's swing vote, and which side he lands on could decide one of the most important cases in decades, a choice with not only profound policy implications but one that could alter the course of the 2012 presidential election.
"I can guarantee you when he opens his mouth, everybody's going to lean forward and very carefully parse every word," said Foley, who will attend oral arguments on behalf of the conservative Institute for Justice.
She contends Kennedy, who often invokes individual liberty, will agree that the centerpiece of the law — a mandate that Americans carry insurance or pay a penalty — is unconstitutional. Others, including some on Foley's side, think Kennedy could go the other way.
No one really knows, underscoring the power he commands. At times maddeningly inscrutable, at times fixed with conviction, the 75-year-old Ronald Reagan appointee has been the force behind dozens of 5-4 decisions, the fulcrum of a court polarized by ideology.
"It's a very good time to be Anthony Kennedy, there's no doubt about that," said Jeffrey Toobin, a legal analyst for the New Yorker and CNN. "You have a court with four conservatives and four liberals and that leaves only one vote in play."