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.
"We better get used to it," said Northwestern University law professor Robert Bennett ."Now Kennedy is right smack in the middle. I suspect he loves it."
[…]
"It really is the Kennedy court," Duke University law professor Erwin Chemerinsky said.
(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.
Conservative leaders meeting in Washington yesterday for a discussion of "Remedies to Judicial Tyranny" decided that Kennedy, a Ronald Reagan appointee, should be impeached, or worse.

Phyllis Schlafly, doyenne of American conservatism, said Kennedy's opinion forbidding capital punishment for juveniles "is a good ground of impeachment." To cheers and applause from those gathered at a downtown Marriott for a conference on "Confronting the Judicial War on Faith," Schlafly said that Kennedy had not met the "good behavior" requirement for office and that "Congress ought to talk about impeachment."

Next, Michael P. Farris, chairman of the Home School Legal Defense Association, said Kennedy "should be the poster boy for impeachment" for citing international norms in his opinions. "If our congressmen and senators do not have the courage to impeach and remove from office Justice Kennedy, they ought to be impeached as well."

Not to be outdone, lawyer-author Edwin Vieira told the gathering that Kennedy should be impeached because his philosophy, evidenced in his opinion striking down an anti-sodomy statute, "upholds Marxist, Leninist, satanic principles drawn from foreign law."

Ominously, Vieira continued by saying his "bottom line" for dealing with the Supreme Court comes from Joseph Stalin. "He had a slogan, and it worked very well for him, whenever he ran into difficulty: 'no man, no problem,' " Vieira said.
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.

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