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This blend of modest routine and immodest power defines Kennedy. He can be shy and ill at ease--or testy and judgmental. Sometimes he pontificates, slowing his cadence for theatrical effect. Other times he speaks with the self-effacing reticence of a genial librarian. Kennedy enjoys telling a story about a group of tourists who stopped him one day on the gleaming steps of the court and asked him to take their photograph. Not one of them recognized their shutterbug as the most powerful judge in America. This may be Kennedy in full: he likes the anonymity, and he likes the power too.
It is easy to forget that there is still a wide range of issues before the Justices--dull but important matters like pension-fund law, for example--that can be resolved amicably, without need for Kennedy's deciding vote. But on most cases of great moment, the intellectual battlefield of the Supreme Court has shrunk to the space between this one man's ears.
And no case is of greater moment than the fate of President Barack Obama's signature health care reforms. With a decision expected before the court rises at the end of June, people close to Kennedy say the struggle this time centers on the question of whether Congress has the power under the Constitution to force millions of uninsured people to buy private insurance as a way of subsidizing coverage of Americans who are sick. While the Constitution gives Congress broad power to regulate commerce, this novel case asks whether the "individual mandate" goes a step too far by creating the commerce it seeks to regulate. On March 27, during the second day of argument, Kennedy put his uncertainties on display: A tax to fund health care could clearly be lawful, he observed. On the other hand, he continued, Congress seemed to cross a symbolic line by forcing people to buy something whether they wanted it or not. "I'm not sure which way the argument goes," he said.