THE RECEIVED WISDOM at the end of the most recent Supreme Court term is that because of his swing vote, Justice Anthony Kennedy is more in control of the court than the new chief justice, John G. Roberts Jr.
It's a nominally plausible theory, given that Kennedy played a similar pivotal role in previous years with the now-retired Justice Sandra Day O'Connor. In those days, the two often found themselves disproportionately powerful as they staked out ground between the court's more ideological members.
But in my judgment, it's a misleading picture of what's happening now -- partly because Kennedy alone is often deliberately speculative and partly because Roberts has at least the nascent but constructive capacity to span partisan division.
Kennedy without O'Connor is like Rodgers without Hammerstein. Oscar Hammerstein wrote lyrics that made songs both memorable and understandable. O'Connor had a comparable gift for creative expression, even as originalists sometimes wondered if she was always reading from the founders' constitutional songbook.
For better or worse, it was O'Connor who had to be satisfied. It was her "reasonable objective observer" who would cast a suspicious eye at public religious displays. And it was her assessment -- not Kennedy's -- of the University of Michigan's practices that allowed racial diversity to be a factor in admissions.
Kennedy, like Richard Rodgers, would often join O'Connor with an accompanying melody. But the words that lower courts would remember were hers.
Kennedy and O'Connor both concluded, for example, that it was wrong for Texas to single out private, consensual homosexual sex acts for criminal punishment. But it was O'Connor's separate concurrence that made sense of the judgment -- pointing out that it is inequitable for a state to punish unmarried intimacy between people of one sexual orientation but not the other. Despite the troubling lack of deference to state law, O'Connor's rationale was at least anchored in the equal-protection text of the Constitution, while Kennedy's hung somewhere in midair exploring what he called "spatial and transcendent" liberties.
O'Connor's rationale was sufficient to keep the petitioner, John Lawrence, and his partner out of a Texas jail; Kennedy's expansive musings to this day provoke further litigation to allow same-sex marriage.
