Justice Anthony Kennedy has often been referred to as the Supreme Court's “swing vote” — and not without reason.
The Daily Signal explained the phenomenon in 2015:
Hailed “King Kennedy,” his ideology places him squarely in the middle of the two wings of the court. He often sides with the conservative justices in civil rights and campaign finance cases (e.g., Fisher v. University of Texas, Shelby County v. Holder, and Citizens United v. FEC), but he frequently casts the deciding vote in cases advancing socially liberal causes (Miller v. Alabama, United States v. Windsor, Romer v. Evans, and Obergefell v. Hodges).
Last term, Kennedy was in the majority in all 10 of the cases decided by one vote. So far this term, Kennedy was been in the majority in 10 of 15 decisions.
And as the Supreme Court looks at the case concerning Masterpiece Cakeshop owner Jack Phillips — specifically the fact that he said he couldn't provide a cake for a same-sex wedding due to his observance of his own Christian faith — Kennedy may again prove to be the deciding factor.
Kennedy, who can often be counted on to favor progress with regard to LGBT rights and other progressive ideals, appeared to be leaning in that direction as proceedings began.
The New York Times reported:
In his majority opinion in the 2015 decision, Obergefell v. Hodges, he indeed seemed to anticipate clashes like the one from Colorado. Justice Kennedy called for “an open and searching debate” between those who opposed same-sex marriage on religious grounds and those who considered such unions “proper or indeed essential.”
At Tuesday's argument, he indicated sympathy for the rights of gay men and lesbians.
But Kennedy is also a diehard defender of free speech and religious freedom — and he felt that the actions taken against Phillips by the state may have crossed a line:
But he also indicated that he believed the civil rights commission had mistreated Mr. Phillips. He quoted from the remarks of one commissioner who called Mr. Phillips's position despicable, and he seemed troubled by a part of the commission's ruling that required Mr. Phillips to retrain his staff.
Frederick R. Yarger, a lawyer for the commission, said he disavowed the commissioner's comment, but Justice Kennedy did not appear satisfied.
Kennedy said that it all boiled down to tolerance.
“Tolerance is essential in a free society,” he said. “It seems to me that the state in its position here has neither been tolerant nor respectful of Mr. Phillips's religious beliefs.”