According to a recent study by Lee Epstein of Northwestern University and other political scientists, far from being unpredictable, Kennedy is one of the most consistent justices in recent history--displaying far less leftward ideological drift since the early '90s than O'Connor or even former Chief Justice William Rehnquist. From the beginning, Kennedy's performance on the Court has been defined not by indecision but by self-dramatizing utopianism. He believes it is the role of the Court in general and himself in particular to align the messy reality of American life with an inspiring and highly abstracted set of ideals. He thinks that great judges, like great literary figures, have both the power and the duty to "impose order on a disordered reality," as he told the Kennedy Center audience. By forcing legislators to respect a series of moralistic abstractions about liberty, equality, and dignity, judges, he believes, can create a national consensus about American values that will usher in what he calls "the golden age of peace." This lofty vision has made Kennedy the Court's most activist justice--that is, the justice who votes to strike down more state and federal laws combined than any of his colleagues.
Kennedy often complains about the "loneliness" of his position, which stems from the fact that he has no reliable public constituency: Both liberals and conservatives tend to view him as a self-aggrandizing turncoat. "Oh, I suppose everyone would like it if everyone applauded when he walked down the street," he said in an interview. "There is loneliness."
But, when it comes time to hand down decisions, Kennedy shows little ambivalence about the centrality of his role in our national drama. His opinions are full of Manichean platitudes about liberty and equality that acknowledge no uncertainty. "Liberty finds no refuge in a jurisprudence of doubt," he wrote in his decision in Planned Parenthood v. Casey, the 1992 opinion upholding the core of Roe v. Wade. "Preferment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality," he intoned in a 2003 dissent from the Court's decision to uphold affirmative action in law schools. Kennedy does indeed agonize before reaching his decisions, and he has dramatically switched his vote in high-profile cases. Yet he seems to agonize not because he is genuinely ambivalent or humble but because he thinks that agonizing is something a great judge should do, to show that he takes seriously the awesome magnitude of his task.
Click on the link and sign up for a free short term subscription.