by Matt Barr

The most powerful man in the country

Dahlia Lithwick digs Mr. Justice Kennedy:

Maybe the fact that Kennedy is suddenly experiencing his moment in the sun isn't just a historical accident of a four-four court with a guy in the middle who can't seem to make up his mind. Perhaps this country is actually ready for what he's selling: the twin notions that the world is an enormous, embattled, struggling place and that the law has a responsibility to try to fix it. Not just in service of the Constitution, but in the service of freedom.

Then maybe he should run for office.

There's really no parallel to this situation anywhere else in the country that I can think of. You're in a position of essentially ultimate power: You can't be realistically removed from the bench, and you can't be reversed by a higher court. You can't be arrested or fined, which might keep a powerful CEO in check; your influence doesn't depend on public goodwill, so even if you were to go all Mel Gibson, you could shake it off and go back to work.

You're occasionally forced into a room with eight other people with votes equal in weight to yours, but the ideological dynamics of the group are such that you really do have the most influence, on the more divisive issues anyway.

And the divisive issues find their way to you. You can't be proactive, the way a President can, or introduce a bill for consideration, like a Congressperson might. But the last 30-40 years have taught the bar that all this business about passing and repealing laws is really quaint and unnecessary most of the time. There's always a set of judges somewhere up the chain that's willing to say that the law already requires your desired outcome.

So the most charged issues, the ones where a devoted minority is willing to take up arms, as it were, cross your desk in some form or fashion eventually. The only limit to your influence can be overcome by patience.

You are the most powerful man in the country.

Contrary to what I gather is popular belief, it wasn't supposed to be this way. The Founding Persons didn't sit around wondering what would happen if something went sideways and say, "I know! We'll have a Supreme Court who can strike it down!" If it even occurred to them that the Supreme Court might be in a position someday where it could erase laws from state codes they had considered and validated 15 years earlier, they would have blinked a couple times at how ludicruous the hypo was but then noted that Congress could take away the Court's appellate jurisdiction any old time it wanted. Checks and balances.

More than 200 years later, there's an inertia at work that simply makes that impossible. So our check on the Supreme Court consists of not running to court in the first place -- scratch that -- or relying on the Justices' restraint. That sounds pie in the sky, but there really is a centuries old tradition of judicial restraint -- apply the law to the facts of the case, avoid sweeping pronouncements that may be applied later to dissimilar facts, let the lawmaking be done elsewhere.

It is, I think, considering human nature, easier to adhere to a doctrine of judicial restraint if there is some realistic outside actual restraint on your power. Mr. Justice Kennedy doesn't have one. The job is his during good beahvior, Congress won't be reining in his jurisdiction, and he can for all practical purposes count on his vote having greater weight than his colleagues'.

This is applauded. Lithwick admires "the vast sprawl of his imaginative world" and that he

believes that justice has a purpose. It is not a neutral set of ideals. It is a promise that humans "can dare, can plan, can have joy in their existence." It's premised on the view that poverty and hopelessness and alienation should cause us worry. Maybe that premise is too ambitious. Maybe it is truly not the province of the law to pave over the differences between those who are suffering and those who are not. But Kennedy at least recognizes that all this suffering and alienation is the handmaiden of lawlessness; and that it is as much the task of lawyers to fight lawlessness as it is to serve some dispassionate, neutral machine called the law.

He is "a tonic to the smallness and smug certainty that has characterized our political leadership in this country for the past six years." Ah. I was wondering when Bush would show up in all this.

I don't know how you or I would act in Kennedy's place. I suspect most of us would discover a vast sprawl of an imaginative world and become a benevolent despot, like he has. Certainly, we'd win admirers who write for Slate, or National Review, or the New Republic, or the Atlantic, whichever side we most often came down on.

Because the whole lot of us are results-oriented. The last 30-40 years of observing the bar has taught us that. We can't unring the bell of litigation as democracy avoidance, so we root for the home team. Half of us want Kennedy right where he is. We all created him.

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