The Commercial Appeal


Swing vote Kennedy puts on the brakes

- By Mark Sherman Associated Press

Chief Justice John Roberts is leading the Supreme Court rightward, but Justice Kennedy occasional­ly hits the brakes.

Gay rights advocate Vin Testa waves a rainbow flag in front of the Supreme Court. The court struck a provision of a federal law denying federal benefits to married gay couples and cleared the way for same-sex marriage in California.

WASHINGTON — The Supreme Court term ended with a flourish of major rulings that marked a bitter defeat for racial minorities and a groundbrea­king victory for gay rights, all in the space of a day.

The justices struck down parts of two federal laws — the Voting Rights Act and the Defense of Marriage Act — that were passed with huge bipartisan majorities of Congress.

Yet only one justice at the center of this conservati­ve-leaning court, Anthony Kennedy, was on the winning side both times. Kennedy joined the four more conservati­ve justices on voting rights and he was with his liberal colleagues in the gay marriage case.

In that 24-hour span, the rulings demonstrat­ed two truths about the court under Chief Justice John Roberts.

The 58-year-old lawyer put to rest any questions he may have raised about his conservati­ve credential­s a year earlier when he cast the deciding vote to uphold President Barack Obama’s health care overhaul.

Roberts has shown himself to be a skillful judge who can get ideologica­lly differing colleagues to agree on narrow rulings that help form the basis for more definitive later judgments, as happened in the voting rights case.

The chief justice sees a benefit to the court as an institutio­n and to his longer-term goal of saying, “We could go farther here, but let’s wait and see,” said Kermit Roosevelt, a University of Pennsylvan­ia law professor.

But Roberts can move the court no further to the right than Kennedy is willing to go.

Divisive civil rights cases dominated the high court’s work in the past nine months, including a challenge to affirmativ­e action in higher education that ended in a com- promise ruling.

The second gay marriage case, involving California’s constituti­onal ban on same-sex marriage, also produced something of a compromise. It ended in a technical, legal ruling that clears the way for same-sex unions in California, but said nothing about a constituti­onal right to marriage.

The justices also delivered important victories for business in cases that limited class-action claims and lawsuits over internatio­nal human rights abuses, allowed authoritie­s to collect DNA from people they arrest, ruled that human genes cannot be patented and called into question agreements between pharmaceut­ical companies that delay the entry of cheaper generic drugs on the market.

The timing of the voting rights and gay marriage decisions was perhaps inevitable, because the court’s toughest cases typically are the last ones resolved before the justices take a long summer break.

Paul Clement, a former Bush administra­tion official who argued that the federal marriage law should be upheld, said what links those two cases, apart from Kennedy’s vote, is the idea that Congress did not give sufficient respect to states.

It subjected some states to strict federal oversight of elections based on old data rather than current conditions, Roberts said in the voting rights case. Congress made secondclas­s citizens of same-sex couples in denying them federal benefits even after states allowed them to marry, Kennedy said in the gay marriage case.


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