(8 of 12)
The 1991--92 term was a watershed. On two major cases, Kennedy's internal struggles to find the right balance led him to break with his fellow conservatives. He made 5-4 majorities in favor of further limiting school prayer and, still more momentous, entrenching the right to abortion. In both cases, he provoked scathing responses from the sharp-penned Scalia, who homed in on the lofty but untethered rhetoric that would become Kennedy's signature in difficult cases. Kennedy's ruling that a prayer at high school graduation violates the rights of nonbelieving students was "conspicuously bereft of any reference to history," Scalia complained. Even more irritating for Scalia was a purple passage in the abortion opinion that conservative commentators would mock for the next 20 years. "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," Kennedy wrote.
Apart from the vague verbiage, however, Kennedy's decisive opinion in Planned Parenthood v. Casey announced the young Justice's intention to be the court's practical problem solver--and, by extension, grand arbiter of America's stickiest issues. On one hand, he strengthened the precedent of Roe v. Wade by declaring that case to be settled law. Next, he replanted the right to abortion in what he believed to be a stronger pot. Instead of grounding abortion in a "right to privacy," which is never mentioned in the Constitution, Kennedy declared it to be part of the well-established right to liberty.
But then came a twist that would become apparent in the years that followed. When Kennedy and his colleagues said that this liberty could not be subjected to "undue burden[s]," he created room for future limitations on abortion rights, provided the burdens they placed on women's liberty were not "undue." Since then, Kennedy has given his majority-making blessing to such limits as mandatory waiting periods and a ban on so-called partial-birth abortion. Boiled down, Kennedy's abortion rulings have made the right to abortion both stronger and smaller--exactly the sort of give-a-little, take-a-little deal that pragmatists might have cut on a Sacramento patio back in the day. In this way, he meant to settle the debate, yet society's argument over abortion rages on.
He seemed to have had something similar in mind in 2005, and again in 2008, when he used his decisive vote to outlaw the death penalty for minors who commit murder and for rapists of children. As with the abortion cases, Kennedy took command of a polarizing issue and tried to find middle ground. Once again, his approach drew fire from his conservative colleagues--especially when Kennedy cited laws from other countries to support his holding that these punishments have come to violate "evolving standards of decency." Scalia again wrote the dissent. Kennedy's majority "proclaims itself sole arbiter of our Nation's moral standards," he sniffed, "and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures." Alexander Hamilton, Scalia implied, was rolling in his grave.