Monday, March 16, 2009; A13

Justice Anthony M. Kennedy has taken over the Supreme Court. Again.

You thought you already knew that? It was easy to get the impression from the flurry of landmark decisions that flowed from the court at the end of the term last summer.

Kennedy was the only justice in each majority as the divided court ruled out the death penalty for child-rapists, found in the Second Amendment the individual right to a firearm and provided constitutional protections to the detainees held at Guantanamo Bay, Cuba.

But last year was something of a slump for Kennedy. According to the folks at Scotusblog.com, which keeps meticulous records of such things, Kennedy prevailed in "only" 86 percent of the cases.

The year before, as the court faced its first full term with Chief Justice John G. Roberts Jr. at the helm and Justice Samuel A. Alito Jr. taking the seat vacated by Sandra Day O'Connor, Kennedy became the essential justice. He was on the losing side of only two of the 72 cases the justices decided. He was in the majority in every one of the 24 cases decided by a 5 to 4 vote.

So far this term, with the court announcing decisions in about a third of its cases, Kennedy has a perfect record.

The caveats: It's early. The court's most divisive cases are yet to come. And much of what the court has done so far is to get the easy ones out of the way. Of the court's 28 decisions this term, justices have been unanimous in the outcome 13 times.

Still, Roberts assigned Kennedy the task of writing the plurality opinion when the splintered court narrowed the scope of what's required under the Voting Rights Act when governments create electoral districts to protect minority voters' rights.

And, with some of the court's most notable decisions and arguments still to come, Kennedy's impact will increase.

Although the tone of an oral argument is not always predictive, few could have left the court's recent consideration of whether a West Virginia Supreme Court justice should have recused himself in a matter involving a campaign supporter thinking that Kennedy would not decide the case.

Likewise, it is hard to imagine that Kennedy will not play the key role in the court's upcoming case on the constitutionality of the linchpin of the Voting Rights Act, the section that requires states with a history of racial discrimination to get approval from the federal government before changing voting laws.

And there's one case on the docket that practically belongs to Kennedy. It is about the circumstances in which public school systems must pay for the private schooling of children with disabilities. Kennedy recused himself when the court tried to decide the issue before, and it split 4 to 4.

As is custom for the justices, Kennedy did not say why he recused himself. But the court has now accepted a case that presents a virtually identical issue, and Kennedy will apparently be back to cast the deciding vote.

"There's clearly a center on this court," says Supreme Court practitioner Roy T. Englert Jr., "and it consists of Justice Kennedy."

Stevens Stays Strong

The second entry in the "more things stay the same" category is Justice John Paul Stevens.

Facing his 89th birthday next month, the court's longest-serving justice is having a year of impact. He has written two of the court's most important business decisions of the term.

In one, he said federal regulation of tobacco companies and the warnings about smoking do not mean that cigarette makers are protected from being sued under state laws governing fraudulent marketing. In the other, he said pharmaceutical companies are not shielded from suits in state court just because the Food and Drug Administration under President George W. Bush said that they should be.

Stevens dismissively wrote that the Bush administration's "recently adopted" goal of protecting the drugmakers "is entitled to no weight" because Congress had not changed the law and state laws have a traditional role in drug safety.

More than that, the gentlemanly Stevens has been an aggressive questioner at oral arguments, especially in the West Virginia case, which seemed to offend him. He even mixed it up with the always-ready-to-spar Justice Antonin Scalia.

Stevens said the case reminded him of former justice Potter Stewart's definition of obscenity: "I know it when I see it."

"I don't think we adopted his principle, did we, in the obscenity area?" Scalia said.

"The question is not whether we have but whether we should," Stevens shot back.

Scalia and Souter Speak

The court's most loquacious justice, Scalia, and one of its most reticent members, David H. Souter, both ventured out of the court recently for speeches.

Souter, 69, drew a crowd of television cameras before his rare address to the American Academy of Arts and Sciences. The interest was not what he had to say to humanities teachers but whether he would give any hints about persistent but impossible-to-substantiate rumors that he is tired of life on the court.

There were none, save this comment about how hard it is to pursue other intellectual activities while the court is in session.

"When the term of court starts, I undergo a sort of annual intellectual lobotomy, and it lasts until the following summer, when I sort of cram what I can into the summertime," Souter said. Armchair analysts can view the remarks for themselves on C-SPAN's Web site (http://www.cspan.org).

Scalia, meanwhile, was promoting his book, "Making Your Case: The Art of Persuading Judges," at Pepperdine University Law School and declining to give advice about how to raise nine children, saying his wife, Maureen, did most of the work.

He did have one tip, according to reports of the event:

"I don't think you have to go to soccer games."

www.washingtonpost.com/wp-dyn/content/article/2009/03/15/AR2009031501856_pf.html