NEWS: Can You Guess the Most Powerful Person in American Government?

POLITICS: Can You Guess the Most Powerful Person in American Government?

Did you say George Bush? Please. Dick Cheney? Getting warmer, but no. Karl Rove? Joe Lieberman? Nancy Pelosi? Harry Reid? John Roberts?

No, no, no, no and no.

The most powerful person in American government, and possibly the most powerful person in the country, is a former Constitutional Law professor at McGeorge School of Law in Sacramento, California named Anthony McLeod Kennedy.

I know what you’re saying. You’re saying, “But ‘Brosa, he’s just one of nine Justices on the Court! Heck, he’s not even the Chief Justice! What the golly-eff-gee are you going on about?”

All true. Kennedy is just one of nine. He is not the Chief Justice. However, he’s still the most powerful man in government. Why? Because he is now the one and only “swing” voter left on the Court. The other eight justices are predictable. Roberts, Alito, Scalia and Thomas on the “right”, Souter, Breyer, Ginsberg and Stevens on the “left.” They are predictable voting blocks and vote together seemingly all of the time. The wild card left is Justice Kennedy.

Remember that article I wrote about Massachusetts v. EPA? Guess who was the swing vote in that case? Kennedy. Who was the swing vote in the case that ruled it was unconstitutional to execute minors? Kennedy. What about the partial birth abortion case decided yesterday? Wait for it… wait for it…

KENNEDY! Hell, dude even wrote the opinion. All in all, Kennedy has been the pivotal vote in a 5-4 decision in no less than nine times this term. Dude goes both ways more than Anne Heche.

Don’t believe me? I’m not the only one saying it.

(For those of you who don’t know who that last guy quoted is, he’s essentially a Constitutional law demigod. His word is bond, if you will.)

It used to be that Kennedy and Justice Sandra Day O’Connor were the swing voters who could go either way on social issues but would predictably vote with the conservative justices on matters like defining the reach of the commerce clause or which president to install. Those days are gone. I can’t be sure because he’s only been on the Court for a short period of time, but if we ever see Samuel Alito (the Justice who replaced O’Connor for all intents and purposes) vote with the liberal justices on a social issue, I’ll eat my bar card. Point is that on virtually every issue that’s close we will be seeing Kennedy cast the deciding vote for the foreseeable future.

That is what makes Kennedy so powerful. But don’t misunderstand me, my friends. I didn’t like the Gonzales v. Carhart decision yesterday, but there are plenty of conservatives who hate Kennedy wayyyyy more than you or I do.

Classy! Granted, those quotes came in 2005, so presumably they’ve calmed down since Kennedy just authored the opinion that approved a “partial birth abortion” ban. One would think they may not subtly threaten to kill him after that, but stranger things have happened.

It is odd that this much vitriol is aimed at Kennedy from the right. I mean, sure they consider him a traitor (“He was appointed by Reagan and thinks buttsex is OK?! Stone him!”), but Justices Stevens and Souter were also GOP appointees. I think what scares these people is that Kennedy seems to march to the beat of his own drum and plays the center-line well. Reactionary conservatives are threatened by that sort of uncertainty.

That uncertainty is, of course, what also makes him The Most Powerful Person in American Government. Hail to the true Philospher-King! It’s Kennedy’s world and we’re all just living in it.

Subrosa, for one, would like to welcome our new California-Born Supreme Court Justice overlord.

so sexy that erwin chemerinksy (my old con law prof before he switched teams to duke) got a newswire mention

wow someone in power who follows his own moral compass instead of a party line and isn't afraid to upset people

Boy, reasoned discourse sure makes my naughty bits tingle.

Particular props go to him for referencing Uncle Joe's policies as an appropriate method for dealing with problems, immediately after conflating Marx and Lenin with Satan. Nothing worth raising an eyebrow about there.

Though, to be fair, I do make my partners refer to me as the Dark Lord of the Nether Realm whenever I visit sodomy upon them. Oh, and I also call my genitals Trotsky, Marx, and Lenin, that is when I'm not referring to them as the People's Hammer... or Bonnie Prince Charlie and the Jacobite Uprising.


Also, the majority opionion for Gonzales vs. Carhart struck me as very poorly written, and intellectually tenuous, at least in comparison to other SC opinions I've read (which is, admittedly, not all that many). Am I wrong here?

"Judicial War on Faith", huh? I was of the understanding that the Supreme Court was a place of Law rather than faith....

Silly Me.

the carhart opinion was quite frankly, a load of crap. i dig me some swing voters (this goes out to you, sandy), they do keep things exciting and it is always nice to have someone who i feel really votes his or her own interpretation of the law instead of strict politics/ideology, but that doesn't mean i don't want to punch 'em in the face sometimes, and carhart was one of those times.

Great article. I would add that the balance of power, and the next generation of jurisprudence, also rests on the very old shoulders of Justice Stevens. We'd all better hope that he can stay alive for another 21 months. Dude is old. Can you imagine one more appointee by Bush, even a weakened Bush?

Sounds like an interesting guy. I'd probably be glad he's where he is, if I was living over there.

It's almost like he thinks about the individual issues...who would dare?

*snort*

Hang on, Stevens, hang on.

Now you just have another 200million voters to work on.

Well, yes and no. The flipside to that argument is that sometimes he thinks too much and changes his mind, which is something that is supposed to be reserved for very rare circumstances in Constitutional Jurisprudence. Also, make no mistake, he's got an agenda and a legal philosophy just like everyone else, his is just different than the other 8 Justices.

I don't follow the SCOTUS particularly much but Kennedy is a weird one. I remember a piece in the New Yorker, where he talked about using international norms etc. He's oddly cosmopolitan for someone who can be such a tool.

He's pretty much single-handedly introduced the idea of considering international norms into American Constitutional law. Or if not that, he's championed it more than anyone I'm aware of. It's one of the things that makes me like him more than I normally would, if for no other reason than it drives Scalia absolutely fucking insane.

If you get a chance and have some time on your hands, read how he weaves that sort of discussion into the Roper v. Simmons opinion (where, by the way, I think taking into account international norms is absolutely appropriate) and then read the dissent where Scalia blows a gasket. High Comedy. This decision came out when I was in my Con Law II class and the professor predicted exactly the above would happen without having read the opinion.

I was going to say me. I guess Time magazine severely inflated my ego.

I'm sure it did.

If he's so powerful, why can't he get our troops out of Iraq, huh? I'm going to have to go with the President on this one, but either way, good article.

God forbid a judge should actually vote on what the law says, and not what a policital bias would predetermine him for. Justice's arent supposed to be fighting for anything except the letter of the law. If you want something political make a law yourself for it! Justices arent supposed to answer to a conscience, they answer to the letter of the law. Why arent the other 8 the ones being grilled when they should all be 'swing' judges. Sheesh.

Fucking politics.

Yeah, all those damn foreign laws. Not like our good old fashioned, home-grown laws, written by, all those, um, you know, Americans, like John Locke, and John Stuart Mill. Oh right, they meant the Haudenosaunee (Iroquois), whose confederacy we modeled our democracy from, and whose rules of respect and conduct we imparted in our own bicameral legislature, you know, before we gave them all small-pox, shoved onto reservations, and tried to say, "hey, just be cool" by giving them a whole bunch of white flour each year, giving the population chronic diabetes. And do satanists have laws?

In conclusion, Kennedy, at least he rules on law.

That's pretty cool.

See here.