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If Kennedy stuck to the middle in every hot case, he would be a much easier jurist to understand. But he doesn't. Consider his 2003 opinion in Lawrence v. Texas, a landmark gay-rights case. In striking down laws that banned homosexual sodomy, Kennedy declared that society cannot apply the moral judgments of the majority to the consensual sexual behavior of adults. In language sure to be quoted back to him when the question of gay marriage reaches the court this year or next, Kennedy wrote broadly, "Liberty protects the person from unwarranted government intrusions" and "includes freedom of thought, belief, expression, and certain intimate conduct." Justice O'Connor added a sixth vote to Kennedy's majority, but she declined to sign on to his sweeping declaration of bedroom liberty. Instead, she took a more moderate path, writing that states may criminalize sodomy as long as the law treats all citizens equally. She predicted that heterosexual voters would not support such bans if they were applied to everyone, and thus--given a bit of time and patience--elected lawmakers would find their way to the same end result that Kennedy sought. There was no need for a dramatic judicial intervention. O'Connor, a former state legislator, was content to let the pragmatism of voters chart the way forward, but in this case Kennedy preferred to follow his own convictions regarding the nature of human liberty.
The Fight for Kennedy's Favor
Like the other justices, Kennedy relies on his clerks to help him think through decisions. The four young lawyers divide the term's cases and summarize each one in a short "bench memo" of two to 10 pages. As the day approaches when a case will be argued, Kennedy convenes his clerks at the table beside the window. "He wants to talk it over. He wants the roundtable," says one recent clerk. "He's actually there in the conversation, saying, 'I'm worried about this,' and 'What about this?'" Kennedy keeps an easel with an oversize pad of paper handy, and on particularly complicated cases, the clerks will "try to write it out for him when he is trying to visualize it." Many clerks interviewed for this article can recall times when the entire table appeared to agree on the proper outcome, only to have the Justice decide the opposite. "You don't know how he's going to go," one recent clerk says.
Alex Kozinski, a former clerk who is now chief judge of the Ninth Circuit Court of Appeals, says Kennedy's agonized thought process is a sign of open-mindedness and empathy, not indecision. "It's getting fully into the mode of understanding the implications of an important decision," Kozinski says. Kennedy mulls not only the theoretical basis of a decision but also how it might play out in the real world. "His way of making up his mind in tough cases frequently was for him to try out an idea for size, like trying on a hat, you know," says Kozinski. "Wearing it for a day, saying, 'Well, maybe I don't look so good in a Stetson. I think I'll try a sombrero instead.'"