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Health care case puts spotlight on Justice Anthony Kennedy, the Supreme Court's swing vote

Published Mar. 25, 2012

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."

Kennedy more often than not votes with the other justices appointed by Republicans. He helped invalidate a handgun ban in the District of Columbia and joined the majority in Bush vs. Gore, which ended Florida's recount in the 2000 presidential election. He has voted against affirmative action and is generally a proponent of state sovereignty.

But Kennedy has a centrist, libertarian streak that has led to voting to protect flag burning as free speech and for gay rights. A prominent evangelical leader once deemed him "the most dangerous man in America." He is viewed as open-minded but also capricious and overly self-aware.

Early in his tenure, Kennedy joined a 5-4 decision upholding the death penalty for juveniles. But in 2005 he wrote the majority opinion outlawing the practice, saying public opinion had shifted. He wrote the majority opinion in 2007 upholding the partial-birth abortion ban despite signing onto a 1992 watershed decision upholding the central element of Roe vs. Wade.

"At various points in his judicial career, Justice Kennedy has managed to infuriate pretty much everyone, all across the political spectrum," then-court nominee Elena Kagan said at a 2006 Harvard alumni luncheon. "What Justice Kennedy has done, time and time again, is to think for himself."

Speculation is rampant about the outcome of the health care case, and other justices are considered potential swing votes, including Antonin Scalia, who like Kennedy is an appointee of Reagan.

President Barack Obama's legal team, in briefings submitted to the high court in advance of oral arguments, has used Scalia's words in a 2005 decision that upheld the federal government's right to prevent Californians from growing marijuana for personal medical use even though state law allowed it.

The court ruled it was within the government's right to regulate economic activity, a central element of the commerce clause in question in the health care case brought by 26 states and formally named Department of Health and Human Services, et al. vs. Florida, et al.

Kennedy was in the majority on the 2005 case but has sent mixed signals on commerce clause issues, making it difficult to predict his thinking in a case monumentally different in scale.

"It's an incredibly complex issue and there's no easy answer," said Helen Knowles, author of The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty. "Which in a way answers the question as to why Justice Kennedy will be the central vote."

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Kennedy, who is Catholic, grew up in Sacramento, Calif., the son of a lawyer and lobbyist. The family was friendly with Gov. Earl Warren, who went on to be the liberal lion of the Supreme Court. Kennedy worked as a legislative page as a boy and on oil rigs in the summer as a teen. Kennedy was still living in his childhood home when President Reagan picked him in 1987 after the failed nomination of Robert Bork and then a second candidate, Douglas Ginsburg, who withdrew after his admission of past marijuana use.

Reagan held out the squeaky-clean Kennedy as someone who would be popular across party lines and Kennedy was unanimously confirmed, a show of support unfathomable in today's hyperpartisan Washington.

Over the years he has developed a reputation for sweeping prose about liberty that is sometimes mocked or seen as self-aggrandizing. "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,'' Kennedy said from the bench during the 1992 decision upholding the constitutionality of abortion. Scalia in dissent ridiculed the "epic tone."

But Kennedy's earnestness goes unquestioned. Former clerks say he stressed an open dialogue and wanted his viewpoint to be challenged. "He's concerned with the arc of constitutional law and wants to get it right," said Orin Kerr, who teaches law at George Washington University.

"I think you have a duty to keep an open mind," Kennedy said in 2005. "That's not indecisiveness. That's just a commitment to the tradition of the law."

• • •

The Patient Protection and Affordable Care Act, passed without a single Republican vote, remains polarizing two years later. The case before Kennedy and his colleagues will be career defining and could either entrench the law or set off a bitter war over alternatives. The decision could come down in late June, and likely will be a major issue in Obama's re-election bid and congressional contests.

Kennedy has left signs — but no decisive answers — in several key cases that will factor into the next few days.

In 1995, the court ruled in the first case since the New Deal to set limits on Congress' power under the commerce clause. The decision in United States vs. Lopez overturned the federal ban on gun possession near schools. Kennedy, who had displayed a strong belief in federalism over the years, joined the majority but wrote a concurring opinion that is likely to play heavily in his thinking in the current case:

"The history of the judicial struggle to interpret the commerce clause during the transition from the economic system the Founders knew to the single, national market still emergent in our own era counsels great restraint before the court determines that the clause is insufficient to support an exercise of the national power."

In the 2005 marijuana case from California, Kennedy joined Scalia in the majority opinion upholding federal law. Even if the marijuana was for personal use, the court found it was still a commodity and subject to regulation under the commerce clause.

Frank Colucci, a political science professor at Purdue University Calumet and author of a book on Kennedy, said the health care case will test the conflict inherent in the justice's thinking over the years: his belief in judicial limits on federal power but a recognition of the practical conception of commerce.

"That sets up the two main arguments in this case," Colucci said. "The people who want to strike down the mandate will give an argument that if you allow this to stand, there are no limits on what Congress can do. The people who want to uphold the mandate will say you can't strike this without undermining the foundations of the federal power to regulate commerce that the court has accepted since 1937."

Six hours have been set aside for arguments, the most in four decades. The hearings will not be televised, but the court has taken the unusual step of agreeing to release same-day audio recordings "because of the extraordinary public interest."

And all eyes will be on the man in the middle.

Kennedy, who likes to listen to opera at home while he ponders difficult cases, may relish the position but can't stand the label he has earned.

"The word 'swing vote' is to me somewhat abhorrent. It has the visual imagery of these wild spatial gyrations," he said during a 2010 speech in West Palm Beach, swinging his hand around like a limp fish.

"My jurisprudence is quite consistent. I don't swing around the cases. They swing around me."

Alex Leary can be reached at