Dana Milbank: Nearly all kiss up to swinging swing vote, Justice Kennedy

Published: Friday, Mar. 29, 2013 - 12:00 am | Page 13A

Imagine how gratifying it must feel to be Anthony Kennedy.

As the justice who most often serves as the swing vote on the Supreme Court, he is the target of endless sycophancy, solicitude and general kissing up – and his courtiers were in their usual poses Wednesday when the high court took up the Defense of Marriage Act, the federal statute that blocks certain benefits for married same-sex couples.

"To go back to Justice Kennedy's point … "

"With all due respect, Justice Kennedy … "

"With respect, Justice Kennedy …"

"As Justice Kennedy said … "

May I take your coat, Justice Kennedy? What an elegant robe you're wearing today, Justice Kennedy! You're looking well today, Justice Kennedy.

The liberal justices were particularly solicitous of Kennedy on Wednesday because the Reagan appointee gave every indication that he would be voting to strike down DOMA, as it is known. Early in the oral argument, the conservatives – Antonin Scalia, Samuel Alito and Chief Justice John Roberts (a silent Clarence Thomas can be assumed to be their tacit tagalong) – explored the idea that the case might be disposed of on the technical grounds that no injury had been proved, a technique that would avoid a ruling calling DOMA unconstitutional.

But Kennedy was having none of it. "It seems to me there's injury here," he said.

The swing vote had swung. Later, the argument turned to the constitutionality of the law, and Kennedy offered his view that it interfered with states' rights. "You are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody," he informed Paul Clement, who was arguing in defense of the statute that Kennedy had, apparently, just sentenced to death.

It is an accident of politics but an accepted fact of life that, in this nation of 314 million people, the only person whose opinion counts most of the time is that of Kennedy, a quarter-century denizen of the court.

Of course, any one of the justices could have Kennedy's clout – Roberts made himself the swing vote in the Obamacare ruling – but most of the time, their predictable reasoning leaves Kennedy as the only one who starts reporters scribbling in the press section of the chamber. This is not entirely satisfying because Kennedy is a mild contributor, piping up intermittently with questions that are invariably thoughtful, usually balanced and often dull.

Wednesday was typical. Five other justices spoke before Kennedy posed a question, but his opinion essentially settled the matter. "Are you saying there's a lack of adversity here?" he asked Vicki Jackson, who was arguing that the case should be thrown out because of a lack of legal standing. He then argued that there was indeed injury, a position that liberal Justice Elena Kagan quickly endorsed.

Kennedy gave the other side some hope when he told Justice Department lawyer Sri Srinivasan that he found it "very troubling" that President Barack Obama had enforced the law even though he thought it was unconstitutional. And he said one of the administration's arguments "would give you intellectual whiplash." But Kennedy gave far worse to Clement, who argued the case for House of Representatives leaders defending the statute because Obama wouldn't. The justice was skeptical of the House's standing in the case because it didn't have "its own unique institutional responsibilities and prerogatives at stake."

At one point, Kennedy informed Clement that his argument "is not consistent with the historic commitment of marriage and of questions of the rights of children to the state." And when the lawyer tried to argue that DOMA is justified because "an unelected state judiciary in Hawaii" is about to rule on same-sex marriage, Kennedy responded: "But your statute applies also to states where the voters have decided it."

Late in the two-hour argument, Kennedy described what he called a "DOMA problem" – a violation of states' authority. "The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage."

Kennedy left little doubt about what he thinks the answer is. When Solicitor General Donald Verrilli argued that DOMA violated the notion of equal protection under the law, Kennedy cut him off. "You are insisting that we get to a very fundamental question about equal protection," he said, "but we don't do that unless we assume the law is valid otherwise to begin with."

And if Kennedy doesn't assume something, nobody can assume it.

Follow Dana Milbank on Twitter, @Milbank.

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Dana Milbank



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