There was a striking difference in the ways that O’Connor and Kennedy handled being the swing vote. O’Connor was a gradualist, a compromiser, a politician who liked to make each side feel that it won something. When she was in the middle in a case, she would, in effect, give one side fifty-one per cent and the other forty-nine. In Planned Parenthood of Southeastern Pennsylvania v. Casey, in 1992, she saved abortion rights; in Grutter v. Bollinger, in 2003, she preserved racial preferences in admissions for the University of Michigan law school; in Rasul v. Bush and Hamdi v. Rumsfeld, in 2004, she repudiated the Bush Administration’s approach to the detainees held at Guantánamo Bay. O’Connor split the difference each time. Yes to restrictions on abortion but no to outright bans; yes to affirmative action but no to quotas; yes to the right of detainees to go to court but no to the full constitutional rights of American citizens. In describing her judicial philosophy, O’Connor liked to point to the sculpted turtles that formed the base of the lampposts outside the Supreme Court. “We’re like those turtles,” she would say. “We’re slow and steady. We don’t move too fast in any direction.”
Anthony Kennedy was no turtle. He tended to swing wildly in one direction or the other. When he was with the liberals, he could be very liberal. His opinion in Lawrence v. Texas, the 2003 opinion striking down laws against consensual sodomy, contains a lyrical celebration of the rights of gay people. In Boumediene v. Bush, the 2008 case about the rights of accused terrorists, he excoriated the Bush Administration and Congress. “To hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, ‘say what the law is,’ ” he wrote, quoting Chief Justice John Marshall’s famous words from 1803, in Marbury v. Madison. No one relished saying “what the law is” more than Kennedy.
But in his conservative mode Kennedy could be harshly dismissive of women’s autonomy, as in Gonzales v. Carhart, the 2007 late-term-abortion law case. (“Some women come to regret their choice to abort the infant life they once created and sustained,” he noted. “Severe depression and loss of esteem can follow.”) Kennedy is believed to have written the most notorious sentence in the majority opinion in Bush v. Gore, acknowledging that the Court acted for the sole benefit of George W. Bush: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Kennedy was not a moderate but an extremist—of varied enthusiasms.
Which bodes well for overturning Obamacare in its entirety…