Kennedy Becomes Key Vote on Supreme Court

July 18, 1993|By LYLE DENNISTON | LYLE DENNISTON,WASHINGTON BUREAU/STAFF GRAPHIC

WASHINGTON — Washington. -- With a keen eye for small detail, a disdain for the grand and showy gesture, a passion for talking one-on-one, an appetite for scholarly summers in Austria, a taste for fine red wines, and a yearning to know more art history, Anthony M. Kennedy is a modern refugee from a bygone era of the salon.

He is, by his own unabashed suggestion to his intimates, a cultured fellow -- seeming, at a glance, somewhat out of place in the contentious circles of power in Washington, more at home perhaps as the ambassador to the Court of St. James in London, as one friend suggests.

But this, too, is the individual who holds what may well be the most powerful single vote on the U.S. Supreme Court. The 56-year-old justice uses that vote, along with the soothing balm of mild-mannered caution, to see that the court does not go running off to extremes, left or right.

As decision after decision by the court over more than five years illustrates, a big, difficult and contentious case can rarely be won without Justice Kennedy's vote. It began to happen within weeks after the Reagan appointee became a justice in the late winter of 1988, and it was happening right up to the end of the term just past.

"What's striking about him," suggests law professor Paul Marcus of the College of William and Mary, "is what he could have done, but didn't."

Focusing on just two highly symbolic questions the court has faced -- whether to overturn Roe vs. Wade, the 1973 abortion ruling, and whether to close the federal courthouses to almost all cases involving police failure to give "Miranda warnings" to suspects they arrest -- Mr. Marcus notes that Mr. Kennedy's vote helped make the 5-4 majorities not to do either. "If he had voted the other way, we would have had two major changes in the law, with wide ramifications."

"For me," the professor adds, "the word for him is 'cautious.' "

That sentiment is echoed by others. "There is an element of gradualism and caution in Kennedy," says a former court aide, now a Washington attorney, who spoke on condition of anonymity, as did a number of those who agreed to discuss their views on Mr. Kennedy or their personal dealings with him.

The justice, that lawyer says, is in the majority most of the time be- cause of that approach. Realizing that "it is very hard to get five votes for a categorical result" -- a result that seeks to settle a major controversy once and for all, with the certainty and clarity of a hard-and-fast rule -- Mr. Kennedy prefers, instead, to go for the least that it will take to get a decision in a case.

But there is more to this justice's seeming power and to his steady move toward prominence: He acts out, more than any other justice does, the personality of the Supreme Court that currently sits.

"He personifies where the court is," suggests Georgetown University law professor David Cole: "He is the most right-wing of the moderates, and he is the most moderate of the right-wing conservatives. He swings back and forth between the moderating forces and the right wing."

Mr. Cole adds that "Kennedy, and the court, swung to the right" in the term that ended in late June. "If he continues to maintain a fairly right-wing perspective, that is where the court will be; if he moderates his views, the court will, too."

Says a former Kennedy law clerk: "He does not have fixed views on a lot of subjects, does not judge by reference to a fixed ideology. He gets there by his own internal processes." Adds Mr. Marcus: "He is still feeling where he's going, but he's going to be a pretty important figure on the court" as the years pass.

If Mr. Kennedy is inclined to join another justice's opinion, but then finds that justice putting something sweeping into a decision, Mr. Kennedy will back off, says another former law clerk.

"He will say, 'We don't have to do this,' " and will disassociate himself from the grander declarations -- even if they are contained only in an isolated footnote.

The one field of law in which Mr. Kennedy is developing what one friend calls "a very powerful set of beliefs" is the First Amendment's protection of free speech and of press freedom.

'Keeper of the flame'

"He sees himself as the keeper of the flame on that," the friend adds, now that Justice William J. Brennan, Jr., the architect of most of the court's modern doctrine on the First Amendment, has retired.

One of Mr. Kennedy's most "courageous" acts, according to several academic observers of his work, was to vote with the majority in the court's two 5-4 rulings to protect burning the American flag as a form of political protest under the First Amendment.

The fact that Mr. Kennedy has chosen to try to make a mark on free speech issues serves, in part, only to reinforce the image of him as a justice who, on practically everything else, is open to persuasion and to shifting alliances.

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