Imagine how gratifying it must feel to be Anthony Kennedy.
As the justice who most often serves as the swing vote on the Supreme Court, he is the target of endless sycophancy — and his courtiers were in their usual poses Wednesday when the high court took up the Defense of Marriage Act, the federal statute that blocks certain benefits for married same-sex couples.
“To go back to Justice Kennedy’s point …”
“With all due respect, Justice Kennedy …”
“With respect, Justice Kennedy …”
“As Justice Kennedy said …”
May I take your coat, Justice Kennedy?
The liberal justices were particularly solicitous of Kennedy on Wednesday because the Reagan appointee gave every indication that he would be voting to strike down DOMA. Early in the oral argument, the conservatives — Antonin Scalia, Samuel Alito and Chief Justice John Roberts (a silent Clarence Thomas can be assumed to be their tacit tagalong) — explored the idea that the case might be disposed of on the technical grounds that no injury had been proved, a technique that would avoid a ruling calling DOMA unconstitutional. But Kennedy was having none of it. “It seems to me there’s injury here,” he said.
The swing vote had swung. Later, the argument turned to the constitutionality of the law, and Kennedy offered his view that it interfered with states’ rights.
“You are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody,” he informed Paul Clement, who was arguing in defense of the statute that Kennedy had, apparently, just sentenced to death.