The most powerful man
in Washington?

WASHINGTON - Some weeks, a soft-spoken senior citizen from Sacramento can be the most powerful man in Washington.

This was one of those weeks, as Associate Justice Anthony Kennedy Wednesday wrote the Supreme Court opinion striking down the death penalty for convicted murderers under age 18.

Twenty-four hours later, during the court’s argument over the Texas Ten Commandments case, Kennedy gave a defense for allowing the display of religious symbols on state property.

As 1987 began, destiny didn’t seem to have marked Kennedy for a powerful role in shaping American law. But Robert Bork’s lack of preparation for his Senate confirmation hearings and Douglas Ginsburg’s pot-smoking history forced President Reagan’s aides to resort to their third-string candidate, a federal judge and a law professor at the University of the Pacific in Sacramento.

Lessons of Bork and Ginsburg
A lesson in this for presidents and those who help them select Supreme Court nominees: when your first candidate fails, and your second surprises you with an awkward episode from his past, you can end up with someone whose decisions you’ll live to regret for 20 years and more.

One of the most conservative presidents in American history wound up placing on the high court a judge who turned out to be in some cases — from the conservative perspective —alarmingly liberal.

Kennedy is the same age, 68, as his frequent antagonist, Justice Antonin Scalia. Given current longevity on the court, both are likely to serve for another 15 years.

While Scalia is the more flamboyant and polemical opinion writer, Kennedy’s views have prevailed over Scalia’s, because Kennedy more often has the votes and Scalia does not.

Especially on the issues of abortion, gay rights and the death penalty, Kennedy aligns himself with the court’s liberal wing of John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. They formed the majority in Roper v. Simmons, this week’s death penalty decision.

Occasionally, as in the 1992 decision Planned Parenthood v Casey, which upheld the Roe v. Wade legal abortion policy, Justice Sandra Day O’Connor joins with Kennedy to uphold the liberal status quo.

Sometimes a conservative
But on other issues, Kennedy has helped form a five-justice conservative majority.

For example, Kennedy joined with the conservatives to strike down part of the 1994 Violence against Women Act.

Kennedy agreed with Chief Justice Rehnquist that crimes against women within a state have nothing to do with interstate commerce, which was Congress’s basis for passing the law.

But Kennedy is likely to be remembered most for his gay rights decisions, first in Romer v. Evans in 1996, in which he ruled states couldn’t ban local ordinances extending rights to gays and lesbians.

Two years ago in Lawrence v. Texas, Kennedy, writing for a six-justice majority, declared state sodomy laws a violation of the Fourteenth Amendment to the Constitution.

Although the case dealt only with sodomy laws, Kennedy broadened the scope of the discussion, raising a red flag for foes of same-sex marriage when referred at one point to marriage and child-rearing, declaring, “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”

Paul Smith, the lawyer who won Lawrence v. Texas with his argument before the court, said Kennedy’s ruling has “very strong language that can be used in the future to attack other forms of discrimination” against gays and lesbians.

Scalia’s dissent accused Kennedy of setting the stage for a Supreme Court ruling telling states they must validate same-sex marriages, even if state law or the state constitution bans same-sex marriages.

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