"He is a California establishment Republican with moderately libertarian instincts," Stanford University law professor Pamela Karlan said of Kennedy. "He travels in circles where he has met and likes lots of gay people."
Based on Kennedy's past opinions, Karlan is confident that if the Supreme Court takes up the issue of California's same-sex marriage ban, "it means Prop 8 is going down to defeat," she said. "There is no way he will take it to reinstate" the ban.
Not all court observers share her prediction, but the uncertainty about how Kennedy might vote may, by itself, be enough to deter the high court from hearing an appeal of the decision by a panel of the San Francisco-based U.S. Court of Appeals for the Ninth Circuit.
A tough choice
If an appeal reaches the court, the four most conservative justices would face a tough choice: Vote to hear the case and run the risk that Kennedy would side with the more liberal justices and establish a nationwide right to same-sex marriage. Or turn the case aside, leaving same-sex marriage intact in California but setting no national precedent.
The justice at the center of the speculation grew up in a Catholic family in Sacramento, where his father was a lawyer and lobbyist in the Legislature. Family friends included then-Gov. Earl Warren. As a Harvard law student, Kennedy visited the Supreme Court to meet with Warren, who was by then chief justice.
Kennedy, who has been on the court since 1988, has reflected at times both styles of Republicanism: the conservatism and respect for states' rights of President Ronald Reagan, who appointed him, as well as Warren's devotion to civil rights and fair treatment.
