What Kennedy's opinion does not openly admit, but what Kennedy's view of his role has long made clear, is that he is deeply sensitive to the way his work as a judge is and will be perceived in history. This is not true only in the work of the Court on race questions, but on other social or cultural issues as well.
While his own quite conservative instincts must make it enormously tempting, now that there are four rigorously conservative colleagues, to join them routinely, the pull of reputation and public image appears to have told him to hesitate. He is even less tempted, of course, to join routinely in the more robust liberalism of his other four colleagues. Both help explain why he is so determinedly the middle Justice -- a position that is especially vivid at the conclusion of the just-completed Term.
What was fully on display on Thursday, amid a great deal of courtroom drama and soaring rhetoric, was the contest that is going on within the Court to influence Kennedy and his vote. And, in that contest, it can be argued that the Court's liberal bloc -- although it seems increasingly isolated on some of the bigger decisions -- is having a substantial effect on reinforcing Kennedy's instinct to keep staking out the middle. The sharp critique of the dissents plays into another facet of Kennedy's self-perception. ...
[Justice Kennedy] regularly seeks to put on display a large -- perhaps even a grand -- perception of the law that leads some unsympathetic observers to regard him as a puffed-up thespian using the Court and other public forums as a personal stage. And one of his grandest perceptions is that, if possible, the law should be made inclusive and should remain sensitive in human terms. (There is no doubt that Kennedy would regard even his much-criticized romanticizing of the relationship of mother and unborn child in the abortion ruling this Term as exhibiting just that kind of sensitivity, just as he probably also saw his often-maligned opinions in the past on gay sexual relations and on prayers at school graduations.)
He knows the man; I don't. Judging from Kennedy's opinions, this seems like a plausible speculation. I just don't think Kennedy pulls it off on a regular basis. makes me wonder (without any specific factual basis) about his clerks on the varying opinions. Or aren't we supposed to talk about that?
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