By: Ron Lipsman
The well-respected columnist Charles Krauthammer recently referred to Justice Anthony Kennedy as “essentially the reigning monarch of the United States.” This reference to Justice Kennedy’s presumed exalted stature derives from his long-held position as the unique swing man on the Supreme Court. The Court is – as it has been for a while – comprised of four reliably conservative justices (currently Roberts, Alito, Scalia and Thomas) and four equally reliable liberal justices (currently Bader-Ginsburg, Breyer, Sotomayor and Kagan). In the last two decades, Kennedy has joined one or the other group to decide some of the weightiest issues confronting the nation by a slim 5-4 majority. Examples wherein Kennedy has sided with the conservatives include: Citizens United v. Federal Election Commission (2010, campaign finance) and District of Columbia v. Heller (2009, gun control). On the other hand, Kennedy joined the liberal coterie in Planned Parenthood v. Casey (1992, abortion).
This ongoing history wherein Kennedy provides the deciding vote on issues of paramount importance before the Court is expected to continue with the forthcoming decision on Obamacare. Following the almost unprecedented three-day long oral arguments before the Court on the merits of President Obama’s signature legislation, expert opinion was nearly unanimous that the Court’s ideological pattern will hold, and that the deciding vote will be cast by “King Anthony.” It will be virtually his decision alone as to whether the individual mandate is constitutional, and if not, then whether the entire statute is to be thrown out.
Now, while the previously cited 5-4 decisions were all vitally important, it is widely believed that the upcoming decision on Obamacare eclipses them by far. Indeed, many conservatives consider the matter existential for the nation – the failure to overturn Obamacare will spell the doom of America as a constitutional Republic based on individual liberty and limited government.
So, with the awesome power and responsibility that thereby accrues to him, is it correct – as Krauthammer implies, and numerous others have asserted more pointedly – that the fate of the United States of America rests in the hands of Justice Anthony Kennedy?
Before the answer to that question is revealed, consider whether such a situation has ever existed in the past. Has the fate of our country truly ever rested in the hands of a single individual? And if so, who and how many times?
The answer is: America’s fate has indeed been entrusted unto the hands of a single person – more than once. It would be foolhardy to argue that George Washington was not such a person. The outcome of the Revolutionary War – and consequently, whether the USA would be stillborn or not – was completely dependent on the skill, courage, wisdom and leadership of General Washington. Without him at the helm of the Continental Army, there would have been no United States of America. The same is true of Abraham Lincoln. Had he not been president and dealt successfully (albeit perhaps a little too slowly) with the southern revolt, the nation would have been cleaved in two.
The preceding cases are self-evident. For other presidents, the issue is much less clear. For example, one could argue that had it not been for FDR’s leadership, the Axis powers might have triumphed and our nation could have succumbed to totalitarian evil. (But see below.) Some consider that JFK’s combination of steely nerves and cool composure kept the nuclear genie in the bottle in 1962. Perhaps.
One can make equally, if not more compelling cases for Generals Grant, Lee and Eisenhower. If Lincoln had not elevated Grant and had the latter not been so skilled a warrior, the Civil War might have ended in a stalemate and the USA would have fractured. The same might have occurred had Lee been a more skilled and/or ruthless commander than he proved to be. And perhaps it wasn’t FDR who saved Western Civilization nearly 70 years ago, but rather Ike’s extraordinary leadership and command capabilities.
Some would argue for FDR, not because of his role in WWII, but rather because his economic programs during the Depression saved the United States. However, with the passage of time, we have learned that, on the contrary, FDR’s New Deal prolonged the Depression rather than ended it. But one can argue that certain financial giants did indeed hold the fate of the nation in their hands: Haym Solomon during the Revolutionary War; J.P. Morgan during the Panic of 1907; or Andrew Mellon during the early 1920s following the Depression of 1920-21.
Presidents, generals and mega-financiers – but no judges. John Marshall did much to determine the role that the Constitution and the Court would play in the young nation’s life. And we have had other influential jurists (e.g., Story, Holmes, Warren), but no one ever asserted that they held the fate of the nation in their hands. Is Anthony Kennedy the first judge to do so?
No liberal would subscribe to that notion. Should Kennedy decide to ditch Obamacare, liberals will be sorely disappointed. But they will see it as a temporary setback on the long road to converting America into a collectivist, Euro-style welfare state. Liberals/progressives believe in such a transformation, have worked tirelessly for it for a century, have enjoyed remarkable success and expect to complete the metamorphosis. They anticipate that Obama (if he is reelected) or some successor, together with a compliant Court, will finish the transformation. Such people account for perhaps 20-25% of the country.
An equal number, perhaps somewhat more – that is, those of the conservative persuasion – are mortified at the prospect. They see a federal government that is out of control; racking up unsustainable debt; engaging in unchecked regulatory oppression; dismantling the country’s defenses and denying the exceptional character of its nature. They see Obamacare as the tipping point, beyond which it will be impossible to reverse America’s century-long slide into Euro-socialism. They foresee an inevitable loss of American exceptionalism, individual liberty and free market capitalism. For these people, there is no doubt that America’s fate is at the mercy of King Kennedy’s whim.
But what of the rest – the independents, moderates, centrists? In fact, given the starkly different and irreconcilable visions for America espoused by the left and right, the centrists are arguably either confused, apathetic or inattentive. It appears not to occur to them that their children’s fate will be determined by what the King decides. But the King will decide soon. Should he decide in favor of the progressives, it will not take long to see whether the dire consequences predicted by conservatives come to fruition. But should he go the other way, then one can hope that it will signal the end of the progressive slide and the beginning of a return to a more traditional America. With those diametrically opposed possible outcomes, it is clear that, indeed, Anthony Kennedy holds the fate of the nation in his hands.
Ron Lipsman, Professor Emeritus of Mathematics, Former Senior Associate Dean College of Computer, Math & Physical Sciences University of Maryland