Anthony Kennedy: Will This 76-Year-Old Conservative Justice Usher in Gay Marriage?


The up and coming supreme court decisions regarding the Defense of Marriage Act (DOMA) could very likely be determined by the Court's typical swing voter, Justice Anthony Kennedy.

A Los Angeles Times opinion piece, written by UCLA (Go Bruins!) constitutional law Professor Adam Winkler explains that gay marriage advocates are relying upon the typically conservative Justice Kennedy to add a third largely-pro-gay-marriage opinion to his repertoire of rulings at odds with his conservative cohorts.

Justice Kennedy's swing vote makes him the most crucial judge on the court.

TIME's Massimo Calabresi and David Von Drehle explain the importance of Justice Kennedy's role; "On most cases of great moment, the intellectual battlefield of the Supreme Court has shrunk to the space between this one man's ears."

With regards to DOMA, Kennedy is hardly predictable. As Winkler points out, Kennedy's actions involving gay marriage have not consistently fallen on the same side. It is also important to keep in mind that justices on the Supreme Court (SCOTUS) may be in favor of gay marriage but may not strike down DOMA as unconstitutional on legal grounds. A Justice's opinion in a case does not always shed light into their personal feelings on an issue, so make sure to hold the ad hominem attacks, despite the outcome of future rulings.

Kennedy has previously made an objection to DOMA based upon federalism and has claimed that the federal government has no business defining marriage. Traditionally, such issues have been determined by the states. Winkler, however, explains that there is little case law to support this claim.

Kennedy has taken heat from conservatives for siding against them in many cases. Despite being appointed by Ronald Reagan, Kennedy has remained surprisingly independent from his conservative association. His swing vote has led to typically non-conservative rulings. Calabresi quoted former Bush Department of Justice official and former Supreme Court attorney Viet Dinh as saying, "There is no grand unified theory for Justice Kennedy's jurisprudence." Predicting Kennedy's rulings has proved itself to be a difficult task, thus allowing his ruling to be the ultimate determining factor in most cases and being the common swing vote that breaks the conservative-liberal divide on the court.

As David Von Drehle's cover story — which was accompanied by the headline "Gay Marriage Already Won" — explains, public opinion seems to be against DOMA. Along with many others, Kennedy will most likely want to be allied with the winning side in the history books.

Kennedy spoke out about the issue back in March, when the court was listening to the Proposition 8 oral arguments. Confusion arose due to the argument about whether the heart of the issue was regarding gender discrimination or sexual orientation. Slate's Sonja West provides an excellent overview of the questions facing Kennedy. Similar ones will continue to persist through the coming arguments.

Justice Anthony Kennedy will once again be the swing vote in many of the upcoming cases, thus making him the most crucial justice in the present Supreme Court.

If you want to have something to do other than reading predictions and incessantly biting your nails, join in the games by predicting the rulings at Fantasy SCOTUS now that you are armed with some ackground on Kennedy.