And what about Justice Anthony Kennedy? In theory, he's the new fifth vote on a sharply divided court—he made the difference in every one of the 24 cases this term that split the justices 5-4. Why wouldn't he keep O'Connor's work alive?
Kennedy does not easily fit the shoes of a Powell or an O'Connor. His jurisprudential approach couldn't be more different from the real-world compromises that pulled them to the middle of the court. In fact, Kennedy often appears to be interested mostly in occupying that center spot for its own sake. He sometimes seems to be using that pivotal fifth vote as a placeholder for more of his hypothetical pivotal fifth votes in the future. O'Connor may well have similarly relished her enormous power at the court's center. But no one could dispute that she ultimately used it to decide the actual cases before her.
Kennedy's outsize influence is certainly being felt this term. But if his all-important swing votes—including his decisive, if wholly inscrutable, opinion in the two affirmative action cases from the end of the term—are any indication, his enormous influence may well prove no more enduring than O'Connor's, albeit for different reasons. Kennedy's well-meaning efforts to split the difference between two teams of frustrated constitutional purists may soon look as sweet and old-fashioned as Powell's and O'Connor's creeping, common-law tradition. In this new era of sweeping political agendas and dramatic, wrenching shifts in the law, there may just be no time or space anymore for small, humble acts of pragmatism.
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