Justice Kennedy: A mysterious gap

authAll week long (while the Jerry Falwell coverage rolled on, with good reason) I have been puzzled about a strange story that I read in The Washington Post. Allow me to flash back. Now, I am the last person who would argue that the legal arguments about the recent U.S. Supreme Court decision allowing a ban on the abortion procedure that must not be named (click here, I dare you) can be boiled down to, well, a cartoon. You know the one I'm talking about, the one by Tony Auth showing five male justices wearing miters suggesting that they voted like Roman Catholic bishops.

Now, with that controversy in mind, please read the recent A1 piece by Robert Barnes on the most powerful man in American life -- Justice Anthony M. Kennedy.

The top does a good job of setting the stage:

It is easy to define Justice Anthony M. Kennedy's role on the Supreme Court this term, and difficult to exaggerate his importance. To borrow President Bush's self-description, he's "The Decider."

He is the only justice to be in the majority in each of the term's unusually high number of 5 to 4 decisions. At this midpoint of the court's rulings, he has been on the losing side in only two of the 40 opinions issued. Because the court so far has shown itself to be strikingly -- and evenly -- divided on ideological issues, Kennedy holds enormous power in pivoting between the left and right, legal experts say. He stands alone in the middle -- and that enhances his importance.

Since this is Culture Wars-era America, this has to have a social-issues hook, including, as mentioned before, the ultimate Sexual Revolution issue. So who is this guy?

Kennedy, a 70-year-old Californian named to the court by Ronald Reagan in 1988, is a moderate conservative, and court watchers expect his conservatism to be more evident in pending cases concerning school desegregation and campaign finance. But his role in the middle does not endear him to the left or to conservative activists who are disappointed he has not been a dependable partner in changing the court.

Conservatives still are irked at Kennedy's 1992 opinion in Planned Parenthood of Southeast Pennsylvania v. Casey -- written with O'Connor and Souter -- to uphold the basic abortion right found in Roe while allowing states to restrict the procedure. Kennedy in the past had been a critic of Roe, and his words from the bench that day -- "at the heart of liberty is the right to define one's own concept of existing, of meaning, of the universe and of the mystery of life" -- are mocked by the right as the "sweet mystery of life" speech.

Well now. Read the whole story again. Is something missing, some factor that might make people on both sides of this issue just a little bit more agitated by Kennedy's mysterious tightrope act on this ultimate issue? As I said up top, I don't think this factor should dominate the story. But silence? Interesting. Maybe the cartoon controversy had an effect.

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