Justice Kennedy: "the Constitution is a flawed document"

Supreme Court Justice Anthony Kennedy is widely and correctly considered the swing vote on the Supreme Court, in that in most 5-4 decisions he is on the winning side when it is a conservative decision but also on the winning side when it is a liberal decision.,

There is some predictability, as court watchers begin to clarify which issues he is likely to be more conservative or more liberal on.   For example, he has been not only in the majority but has written the majority opinion in several of the important gay rights decisions (Romer v Evans in 1996, Lawrence v Texas in 2003, U.S. v Windsor in 2013).   

Kennedy has also voted with liberals in an important habeas corpus case, in imposing some limits to capital punishment, and in upholding Roe v Wade, although he has voted with conservatives on some limits to abortion.   He joined conservatives in 2008 to overturn the D.C. ban on hand guns but then voted in 2014 to uphold the ban on the purchase of guns for others.

In a speech to the Ninth Circuit Judicial Conference in California (reported by the San Francisco Chronicle), Kennedy said:

"The Constitution of the United States is a flawed document. . . .  [It] is not meant to be interpreted in its original, literal state. . . .  [The Constitution's authors]  intentionally used general language so that guiding principles could steer lawmakers tackling present-day issues."

He has also said that he is "not so sure" that the second amendment actually protects an individual's right to bear arms, as opposed to authorizing the necessary militias of the late 18th century.   This puts him squarely in the pivotal seat on the central controversy in most gun control laws.

He also holds that pivotal vote in the marriage equality cases that will undoubtedly be coming to the court in the coming year.

Ralph