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Given Kennedy's power, legal minds from across the political spectrum spend considerable time and effort to influence his choice of clerks each fall. Who sits at Kennedy's table, after all, could tip the scales of justice on any number of cases. The selection process seems as ungovernable as Kennedy himself. A panel of three former clerks prescreens the candidates. Often the screeners include Kozinski and another clerk from Kennedy's first year on the bench, Washington litigator Richard Willard. The screeners tend to lean in a conservative direction, but somehow the Justice usually ends up with his clerks arrayed across the political spectrum. This term, he has two clerks who are said to be left of center, one moderate conservative and one who is more to the right. Two of the clerks formerly served with lower-court judges who weighed the Obamacare cases as they rose through the appellate system. "With that spectrum, he's going to have all the arguments in front of him," a recent clerk says.
Lawyers also seek to sway the key Justice by crafting what are known as "Kennedy briefs"--arguments that borrow lavishly from Kennedy's prior rulings in hopes of striking a pleasing chord in the man from Sacramento. Often, these briefs are written by former Kennedy clerks. But no matter how thickly they stuff the briefs with Kennedy's own language, the outcomes remain unknowable. After all, this is a man who has been playfully dubbed "Flipper" by former law clerks, referring to the friendly dolphin in the 1960s sitcom. And echoing Kennedy is not always easy: he thinks he is a good writer (and so does Didion), but lawyers, who live and die by precision of thought, detest his flights of rhetoric and find it awkward to emulate them.
Opponents of Obamacare focused their Kennedy briefs on a number of opinions in which he maintained the importance of limiting government intrusions into individual liberty. Kennedy has extolled the fact that the Constitution weakens the power of government by dividing it in two ways: the "horizontal" separation of federal powers among the three branches and also the "vertical" separation of federal authority and state authority. "Two governments accord more liberty than one," Kennedy wrote in a 1995 opinion agreeing that Congress overstepped its authority when it banned firearms near schools. Latching on to this idea, the attorneys argued that only states--not the federal government--have the authority to mandate the purchase of health insurance.