His brooding countenance stares out at us from a prominent place on the newsstand. Chances are you will not recognize the face. At first glance you might think it's the return of Alan Greenspan, the man who's sober stewardship of the Federal Reserve System included a memorable description of the stock market's "irrational exuberance." The large print on the cover of Time magazine calls him "THE DECIDER." Well, that could be Mr. Greenspan, who decided interest rates and money supply for many years. But no, the cover tells us that title goes to Justice Anthony Kennedy, most often the "swing vote" in an evenly and ideologically divided court that resolves many disputes in 5-4 decisions. Since the four liberals and four conservatives vote in generally predictable patterns, Kennedy's unpredictable vote is the lever of power, potentially deciding everything, as the cover tells us with anxious anticipation, "from gay marriage to ObamaCare."
Read through the article and you will find the usual jargon about the "living document," with the Constitution and history moving forward together. (It seems a shame not one of the "other" Kennedys, the ones who made policy from the Senate and the White House, were not on the Supreme Court. Imagine John F. Kennedy ruling from a seat on the high court that the Constitution can't stand still, it must "move fawuhd and yes, with ayuh great deal of viguh.") There is even a brief contrast between Kennedy's cautious, pragmatic conservatism with the atavistic cry from the founding issue of William F. Buckley's National Review way back in 1955 to "stand athwart history yelling 'Stop.' " If "history" is moving in the wrong direction, shouting "Stop!" makes a lot of sense, assuming "history" is capable of hearing and heeding.
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Jack Kenny (photo)