Taking a Road Less Traveled in the High Court

But their friendship fractured in the spring of 1992, when the court took on two highly controversial cases. When it looked as if Rehnquist had a majority to overturn bans on school prayers and the Roe vs. Wade ruling that legalized abortion, Kennedy broke ranks. He joined a five-justice majority -- all of whom were Republican appointees -- to preserve the abortion right and the ban on school-sponsored prayers. Ever since, Scalia's most vehement dissents are usually pointed directly at Kennedy.

For example, after Kennedy spoke about the Constitution guaranteeing respect and dignity for gays -- although not a right to marry -- Scalia accused him of having "signed onto the so-called homosexual agenda."

"Since the Constitution of the United States says nothing about this subject ... this court has no business imposing upon all Americans the resolution favored by the elite," Scalia said in a dissent joined by Rehnquist and Justice Clarence Thomas.

The sharp words aside, Kennedy is no liberal, and he usually joins with the court's conservative bloc in criminal cases, including supporting the death penalty. But two years ago, he joined with the liberals to end executions of mentally retarded defendants, prompting another sharp dissent from Scalia.

As with Warren, Kennedy's broad reading of the Constitution has won him admirers and enemies.

Yale Law professor Akhil Amar said Kennedy's opinions set out a grand vision that was similar in style to Warren's. "There is a kind of sunny, optimistic vision and Western-style progressivism that reminds one of Warren," he said. "You could call him a Big Tent Republican. In the gay rights opinion, there is a real sense of humanity and sensitivity for people who have been stigmatized."

But Kennedy's willingness to make social policy troubles many conservatives. Last week, the Wall Street Journal's editorial page said Kennedy's opinion in the juvenile death case "symbolizes the current Supreme Court's burst of liberal social activism. From gay rights to racial preferences and now to the death penalty, a narrow majority of justices has been imposing its own blue state cultural mores on the rest of the nation."

There is no doubt the recent death penalty rulings have their greatest effect in the red states of the South.

Among the 72 teenage killers who were taken off death row by the decision, all but a handful were in Texas, Alabama, Mississippi, Louisiana and North Carolina. Only three states -- Texas, Oklahoma and Virginia -- had carried out executions of juvenile murderers in the past decade.

Lawyers and former clerks refuse to be quoted speaking critically about Kennedy or other sitting justices, but many conservatives are dismayed by his record.

"Conservatives are angry and view him as a disappointment," said one former clerk. "He is a generally sound, careful, thoughtful judge. But he is also a judicial imperialist. He has a deep faith in the judiciary's ability to solve our society's problems, and that runs counter to traditional conservative principles."

Activists on the right and the left also see in Kennedy's saga a lesson for the year ahead.

He is a member of the Supreme Court only because the Senate defeated Bork, Reagan's first choice. As one activist said in response to last week's 5-4 ruling, it showed the importance of having the "right judges" on the high court.