The most powerful man
in Washington?

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A professor's approach
Assessing Kennedy’s career, Pepperdine University law professor Doug Kmiec, who served as an official in the Justice Department during the Reagan administration, said, “His approach to constitutional questions reflects his many years of giving classroom instruction in constitutional law. He is not content with formal doctrine; he asks probing questions about why a doctrine exists and whether it remains faithful to original constitutional purpose.”

He added, “Most importantly, and most controversially, he has a commitment to the universal. His opinions in Casey, Lawrence and Roper all reflect his exploration of what it means to be a human person. His conclusions are quite liberal on this score and this puts him at odds with a more consistently conservative and formal approach.”

Kmiec said that if there is a flaw in Kennedy’s approach, “it is not his willingness to ask hard questions about the meaning of text or past precedent, it is that he finds it too easy to give these provisions his best assessment of meaning, when, in fact, the Framers left these intractable problems to the people to work out in legislative assembly.”

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To the non-legal scholar it may seem as if Kennedy, having staked out a position on abortion or religion, sometimes tacks in the opposite direction in order to not appear doctrinaire.

Dissent on partial-birth abortion
For instance, after helping write the Casey decision upholding abortion rights, Kennedy issued a passionate dissent eight years later when the justices struck down Nebraska’s ban on the procedure known as partial-birth abortion.

Kennedy included an excruciating description of that procedure and said, “The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn limb from limb.”

He denounced partial-birth abortion as “a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life.”

In religion cases, Kennedy has steered carefully and not always predictably. He wrote the majority opinion in Lee v. Weisman in 1992, which told public school principals they could not allow rabbis, ministers or priests to recite a prayer at a graduation ceremony.

Kennedy declared that having a rabbi recite a prayer created a coercive environment for students.

The following year he wrote the court's opinion striking down Hialeah, Fla. ordinances which banned a Santeria church from using animal sacrifice in its rituals. The First Amendment does not allow government to single out one religion or sect for regulation, he said. The Hialeah laws were “an impermissible attempt to target petitioners and their religious practices,” Kennedy wrote.

On Thursday Kennedy was back as defender of religion. In his grilling of the lawyer seeking removal of the Ten Commandments monument from state property, Kennedy stressed the word “obsessive” when he complained about “an obsessive concern with references to religion” in public places.

The plaintiff, he groused, was “asking religious people to surrender their beliefs.”

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