Anthony Kennedy

(b. Sacramento, Calif., 23 July 1936), associate justice, 1988–. Justice Kennedy's parents, Anthony and Gladys Kennedy, were an economically comfortable, middle‐class professional family of the Roman Catholic faith. His undergraduate education combined work at Stanford University and the London School of Economics. After receiving his B.A. from Stanford in 1958, Kennedy studied at Harvard University Law School. Upon receiving his degree cum laude in 1961, he became an associate in the San Francisco law firm of Thelen, Marrin, John, and Bridges. He returned to Sacramento to private practice as a partner in the firm of Evans, Jackson, and Kennedy. In 1965, Kennedy began a long and cherished association with the McGeorge School of Law at the University of the Pacific. He taught constitutional law there until his elevation to the U.S. Supreme Court in 1988.

In his years as a private practitioner in San Francisco and Sacramento, Kennedy was an able lawyer of conservative inclination and Republican Party affiliation, as was his father. After his father's death, Kennedy gradually became more of an activist, expanding his circle of political friends, increasing his political campaign contributions, and influencing some of his clients to give generously to conservative causes. He also worked as a lobbyist and in that capacity became a close friend of Ed Meese, a lobbyist for the California District Attorneys Association. His friendship and cooperation with Meese continued after Ronald Reagan was elected governor in 1966. Subsequently, Meese asked Kennedy to assist Reagan in 1973 in drafting Proposition 1, a ballot initiative to cut state spending. Kennedy campaigned throughout the state on its behalf. Although Proposition 1 failed, Reagan appreciated Kennedy's efforts and later recommended him to President Gerald R. Ford for a judicial vacancy on the Federal Ninth Circuit Court of Appeals. After thirteen years in private practice, Kennedy took his oath of office on 3 May 1975. Between 1975 and 1988, the year he was named an associate justice of the Supreme Court, Kennedy wrote over four hundred decisions. When the Senate Judiciary Committee considered his qualifications for elevation in its confirmation hearing, these circuit court decisions were subjected to sharp scrutiny as indicators of his views on the separation of powers, and minority and gender discrimination.

Despite a solid career as an able lawyer and circuit judge, Kennedy's emergence as President Reagan's successful nominee for the Supreme Court vacancy created by the resignation of Associate Justice Lewis Powell was overshadowed by the events surrounding the nominations of Robert H. Bork and Douglas Ginsburg, both rejected for the same position. Comparisons between Bork and Kennedy enlivened Senate debate of the latter's qualifications. Kennedy received the highest evaluation of the American Bar Association's Standing Committee on the Federal Judiciary—well qualified on the basis of his integrity, judicial temperament, and professional competence. In contrast, this committee had disagreed over Bork's qualifications, with four of its members voting him “not qualified” on the basis of his “extreme views respecting constitutional principles.”

Initially, Associate Justice Kennedy contributed substantially to conservative majority coalitions, voting with Chief Justice William Hubbs Rehnquist in 90 percent, and Associate Justice Antonin Scalia in 89 percent, of the cases heard by the end of the 1988–1989 Court term. These early percentages did not, however, provide a completely predictive model of Kennedy's unfolding career on the Court. Kennedy is often referred to as a moderate conservative. With Associate Justice Sandra Day O'Connor, Kennedy is a swing voter, frequently voting with the conservatives Rehnquist, Scalia, and Associate Justice Clarence Thomas, yet occasionally concurring with centrist or liberal Associate Justices Stephen G. Breyer, Ruth Bader Ginsburg, John Paul Stevens, and David Souter.

Kennedy's transition from a generally reliable supporter of Rehnquist to occasional swing voter has been complex. During his first four years on the Court, Kennedy rarely withheld support for an ever‐larger conservative majority. The consecutive appointments of Scalia, Kennedy, Souter, and Thomas had appeared to give the chief justice an invincible conservative majority. Moreover, the chief justice assigned the writing of a large number of majority opinions, some in important cases, to Kennedy, unusual for a relatively new member of the Court. In terms of doctrine, this confidence was apparently justified by Kennedy's earlier years of service within the judiciary. Some commentators nevertheless came to refer to Kennedy as “Rehnquist's lieutenant.”

However, the attempt by Rehnquist, Scalia, and Thomas to overrule Roe v. Wade in *Planned Parenthood v. Casey in 1992 was rejected by three fellow conservatives: Kennedy, O'Connor, and Souter. Their joint opinion concluded that the rejection of stare decisis “should rest on some special reason over and above the belief that a prior case was wrongly decided.” This division in conservative ranks was by no means universal, but it did mark a departure from the previous general solidarity among conservatives. Kennedy, O'Connor, and Souter often voted with their conservative colleagues in civil rights, criminal justice, and property rights cases.

Chief Justice Rehnquist has long opposed the Jeffersonian position that the First Amendment requires “a wall of separation between church and state,” arguing in an early case that this is a “misleading metaphor based on bad history.” O'Connor and Kennedy were crucial in defeating an effort to uphold graduation prayers led by a denominational cleric and student‐led prayers over a public school microphone in Lee v. Weisman. Yet the positions of O'Connor and Kennedy in the most serious and controversial case decided after Kennedy became a member of the Court were neither noteworthy nor independent. Bush v. Gore determined the outcome of the 2000 presidential election. It sharply divided the Court. It also aroused national partisan divisions. Every other justice expressed a strong position on the major issues, several in a number of separate opinions. In contrast, O'Connor and Kennedy quietly helped make a conservative majority.

Public policy positions taken outside the formal procedures of the Court also provide evidence of Kennedy's developing judicial persona. Perhaps the most important of these was his August 2003 address to the American Bar Association (ABA) calling for the abandonment of mandatory minimum sentences for some Federal crimes.

One serious constitutional issue that could call into question the very independence of the Supreme Court's justices and other Article III judges is the judicial monitoring directive of Attorney General John Ashcroft during the first administration of President George W. Bush. In July 2003, Ashcroft ordered U.S. attorneys to carefully monitor Federal judges who impose criminal sentences more lenient than provided for in the fifteen‐year‐old Federal sentencing guidelines. Federal prosecutors were directed to immediately report any downward deviation to the Justice Department. Ashcroft concluded, “The Department of Justice has a solemn obligation to ensure that laws concerning criminal sentencing are faithfully, fairly, and consistently enforced.”

Prior to the Ashcroft directive, Justice Kennedy had upheld tough penalty legislation and agreed to the need for sentencing guidelines to define the range of potential punishments and minimize inconsistencies. He had voted with the conservative majority to uphold the constitutionality of California's “three strikes and you're out” legislation for felons. But the swiftness of his response to Ashcroft's 28 July directive suggests that Kennedy had been seriously reconsidering a number of these and related issues.

In early August of 2003, Kennedy addressed the ABA, stating, “Our resources are misspent, our punishments too severe, our sentences too long. … I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases, mandatory minimum sentences are unwise or unjust.” Although such laws have been upheld, Kennedy asked ABA members to persuade Congress to repeal mandatory minimum sentence laws. As he put it, “Courts may conclude that the legislation is permitted to choose long sentences, but that does not mean long sentences are wise or just.” Kennedy also urged ABA members to evaluate state and Federal criminal pardoning systems, stating that “the pardon process, of late, seems to have been drained of its moral force. Pardons are infrequent. … A people confident in its laws and institutions should not be ashamed of mercy.” He noted the large numbers of people “behind bars” of which “about 40% … is black,” concluding that “out of sight out of mind is an unacceptable excuse for a prison system that incarcerates over 2 million human beings in the United States.”

Justice Kennedy has indeed carved out a number of judicial and public policy positions independent of his original virtually complete commitment to the conservative Court coalition. But that independence has been limited and certainly unpredictable. Justice Kennedy's subsequent years on the Court have been somewhat more moderate; but he voted with Scalia and Rehnquist on Florida election issues.

Bibliography

• Anne Gearson, “SC Justice Kennedy Says Prison Terms Too Long”, summary of Kennedy's address to the American Bar Association, Ventura (California) Star (10 Aug. 2003), p. A4.
• Jerry Goldman, Anthony Kennedy, OYEZ Project of Northwestern University (2001).
• Jerry Goldman, Anthony Kennedy, Supreme Court Historical Society (2003).
• Jerry Goldman, Justice Anthony Kennedy, in Supreme Court Justices (2003). Kennedy Discusses Sentencing, Foundations of Freedom, The Third Branch 35, no. 9 (September 2003)

— John R. Schmidhauser

U.S. Supreme Court Justice Anthony M. Kennedy (born 1936) was appointed by Ronald Reagan in 1988. His votes generally tipped the balance in favor of conservative decisions.

Anthony M. Kennedy, who was named to the United States Supreme Court after President Ronald Reagan's first two nominations for Justice Lewis Powell's seat were unsuccessful, was born on July 23, 1936, in Sacramento, California. He reportedly experienced a remarkably trouble-free boyhood that included regular service as an altar boy at his Roman Catholic parish church. In fact, Kennedy used to joke with his young friends that his father in a fit of affectionate despair had offered to pay him $100 if just once he would do something requiring his parents to come pick him up at the local police station! The youngster never collected on the dare.

An honor roll student at McClatchy High School in Sacramento, Kennedy always assumed that he would attend Stanford University like his mother and become a lawyer like his father. Indeed, Kennedy was to follow in his parents' footsteps. As an undergraduate, the future justice continued his outstanding academic career. He was particularly captivated by constitutional law, and his professor for that class described him as "brilliant." Kennedy completed his graduation requirements in three years, but his father apparently thought his son was too young to enroll immediately in law school, so young Kennedy spent a year at the London School of Economics. Upon his return in 1958, he received his B.A. degree from Stanford, where he was elected to Phi Beta Kappa. He then attended Harvard Law School, from which he obtained his LL.B. degree, cum laude, in 1961.

Becomes Expert on Constitutional Law

Kennedy began his practice of law in the prestigious San Francisco firm of Thelen, Marrin, John & Bridges, but within two years he was back in Sacramento to assume the law practice of his father, who had died suddenly of a heart attack in 1963. Described as an "intellectual," Kennedy seemingly disliked the flesh-pressing required of lobbying work in the state capital. Eventually, he found an outlet for his more academic interest in the law when the dean of the McGeorge School of Law of the University of the Pacific offered him a part-time teaching position. Just as in his student days, he thrived in the classroom and would often amaze his own students by lecturing for three hours on constitutional law without referring to a note.

Like his father before him, Kennedy was a Republican, if not a particularly active one. Nevertheless, in the early 1970s he was asked to serve on a commission to draft a tax-limitation initiative known as Proposition 1 for Ronald Reagan, then the governor of California. Although the ballot proposition failed in 1973, Kennedy had impressed the Reagan camp with his constitutional expertise. When an opening became available on the U.S. Court of Appeals for the Ninth Circuit in 1975, President Gerald Ford was persuaded to appoint Kennedy to the circuit bench, making the 38-year-old Californian one of the youngest appellate justices in the nation's history.

"Unknown" Philosophy Leads to High Court

Significantly for the ideological fallout over the abortive nomination of Judge Robert Bork in 1987, Kennedy was described as a moderate conservative cast in the Gerald Ford, rather than in the Barry Goldwater, mold. Liberals were quick to label Kennedy "open-minded" in contrast to the "reactionary" Bork. Yet the more accurate picture of Kennedy's ideology in contrast to Bork's was not that it was less conservative but that it was virtually unidentifiable. The 430 opinions that Kennedy had drafted in his tenure on the Ninth Circuit did not reveal a clear jurisprudential posture on such controversial issues as civil rights, women's rights, and the issue which was Bork's downfall, the right to privacy. Unlike Bork's academic penchant for writing and speaking, Kennedy had left no paper trail of law review articles and speeches.

Thus, Kennedy's personal integrity, his judicial experience, and his less dogmatic ideology made him the perfect candidate to fill Justice Powell's "swing" seat on the Supreme Court after the turmoil surrounding the Senate's defeat of Bork in October 1987 and the withdrawal of Judge Douglas Ginsburg's nomination several weeks later when it was disclosed that he had used marijuana both as a student and as a law professor. After a seven-month ordeal to fill the Court's ninth seat, the Senate voted unanimously (97:0) on February 3, 1988, to confirm the Kennedy nomination. At the age of 51, Kennedy became the Court's youngest member.

Kennedy's early years on the high court by no means offered a definitive portrait of his Supreme Court jurisprudence, but his initial votes and opinions began to reveal identifiable trends. As occupied by Justice Kennedy, the Court's swing seat, which Justice Powell had captured for the moderate center, no longer functioned as a vote that balanced the liberal and conservative blocs by siding with one or the other from case to case. Instead, Kennedy's vote became a tie-breaker that consistently tipped the balance in favor of the conservatives.

Conservative Voting Record

In the abortion realm, for example, Kennedy voted with the 5:4 majority to allow states the right to impose substantial new restrictions on abortion (Webster v. Reproductive Health Services [1989]). Kennedy also arrived at a conservative result on the matter of the right to privacy vis-à-vis the drug-testing issue. In Skinner v. Railway Labor Executives (1989) and National Treasury Employees v. Von Raab (1989), he wrote both majority opinions for the Court's constitutional sanction of the federal government's efforts to create a drug-free workplace.

It is in the area of affirmative action, however, that Justice Kennedy's vote began to distinguish him most fundamentally from Justice Powell. In early 1989 Kennedy voted with the 6:3 majority in invalidating a localset-aside law in Richmond, Virginia, that channeled 30 percent of public works funds to minority-owned construction companies (City of Richmondv. J.A. Croson Co.). He also cast his vote with the narrow 5:4 majority that ruled that court-approved affirmative action settlements may subsequently be challenged by disappointed white workers (Martin v. Wilks [1989]). The Court reached an equally conservative result, with Kennedy casting a fifth vote for the majority, in Wards Cove Packing v. Atonio (1989), which ruled that employee discrimination claims based on a statistical showing of underutilization of women or minorities must prove that the policies they are challenging cannot be justified as necessary to the employer's business.

Kennedy's most notable contribution to the Court's more conservative tack in employment discrimination cases was his majority opinion in Patterson v. McLean Credit Union (1989), which upheld the use of the 1866 Civil Rights Act for claims of discrimination at the initial hiring stage, but barred use of the statute for claims of on-the-job bias.

In church-state matters Kennedy revealed an accommodationist stance, particularly in simultaneous rulings on Christmas-season displays sponsored by city and county governments in Pittsburgh. He dissented from a decision declaring that a Nativity scene, unaccompanied by any more secular symbols of the season, amounted to an unconstitutional endorsement of the Christian faith. He found himself in the majority, however, when the Court permitted a Hanukkah menorah to be displayed next to a Christmas tree (Allegheny County v. Greater Pittsburgh A.C.L.U. [1989]).

Another First Amendment case, this time in the free speech realm, found Kennedy uncharacteristically joining in a liberal decision which declared that burning the American flag as a political protest is a form of protected symbolic speech (Texas v. Johnson [1989]). Despite his vote in the controversial flag-burning case, Kennedy seemed to be clinging to a cautious conservatism bolstered by a professed adherence to judicial restraint.

According to the New Yorker (November 11, 1996), "Kennedy has disappointed conservatives by upholding liberal precedents on the crucial social issues of abortion, flag-burning, gay rights and school prayer.." A writer for (n"1"]Washingtonian December 1996) magazine noted that Kennedy and fellow justice Sandra Day O'Connor have become an "important tandem" because of their unpredictability. A critic retorted that Kennedy and O'Connor "should really be thrown to the alligators." (National Review June 17, 1996). But others state he is doing what he was appointed to do, as "he refuses to impose his personal views on the nation." (New Yorker November 11, 1996).

Kennedy married Mary Davis on June 29, 1963, and was the father of two sons and a daughter.

Further Reading

A short biographical sketch may be found in the Congressional Quarterly Guide to the U.S. Supreme Court, 2d edition (1990). An informative analysis of Kennedy also appeared in the New York Times (November 12, 1987). The Senate Judiciary Committee's report of the hearings on Kennedy's Supreme Court nomination provided a wealth of material (100th Cong., 1st sess.).

See also New Republic (June 10, 1996); National Review (June 17, 1996); New Yorker (November 11, 1996); Washingtonian (December 1996); and U.S. News & World Report (July 7, 1997).

For more information on Anthony McLeod Kennedy, visit Britannica.com.

• Born: July 23, 1936, Sacramento, Calif.
• Education: Stanford University, B.A., 1958; London School of Economics, 1957–58; Harvard Law School, LL.B., 1961
• Previous government service: judge, Ninth Circuit Court of Appeals, 1975–88
• Appointed by President Ronald Reagan Nov. 30 1987; replaced Louis F. Powell, Jr., who retired
• Supreme Court term: confirmed by the Senate Feb. 3, 1988, by a 97–0 vote

Anthony M. Kennedy was, for most of his career, a partner in a law firm and a teacher at the McGeorge School of Law of the University of the Pacific in Stockton, California. President Gerald Ford appointed Kennedy to be a federal appellate court judge, and between 1975 and 1988, Kennedy wrote more than 400 opinions as a federal judge on the Ninth Circit Court of Appeals.

After his appointment to the Supreme Court in 1988, Justice Kennedy, as a moderate conservative, tended to vote in agreement with Chief Justice William Rehnquist during the 1988–89 term. In 90 percent of the cases, he voted in agreement with the chief justice. Since then, he has shown more independence.In Church of the Lukumi Babalu Aye v. City of Hialeah (1993), Kennedy wrote the decision for the Court to strike down a city's ban on ritual animal sacrifice, practiced by the followers of the Santera religion. Kennedy held that the city government of Hialeah, Florida, had violated the 1st Amendment right to free exercise of religion.

In Romer v. Evans (1996), Justice Kennedy wrote the Court's opinion to strike down an amendment to the Colorado constitution that prohibited legislation created specifically to protect the rights of homosexuals.

Anthony McLeod Kennedy was appointed as an associate justice of the U.S. Supreme Court in 1988. Kennedy was the third person nominated by President Ronald Reagan to fill the vacancy created by the retirement of Justice Lewis F. Powell, Jr. A judicial conservative, Kennedy has generally voted with the conservative justices on the Court, yet he has split from them in significant rulings on abortion rights and gay rights.

Kennedy was born in Sacramento, California, on July 28, 1936. He graduated from Stanford University in 1958 and from Harvard University Law School in 1961. He practiced law in San Francisco and Sacramento, and taught constitutional law at the McGeorge School of Law of the University of the Pacific from 1965 to 1988.

His conservative philosophy and his Republican party affiliation led to Kennedy's first judicial appointment. In 1975 President Gerald R. Ford appointed him to the Ninth Circuit Court of Appeals. Kennedy served on the federal appeals court for thirteen years and wrote over four hundred opinions.

A well-respected jurist, Kennedy entered the national limelight after the Senate rejected President Reagan's first nominee for Powell's seat on the Court, Judge Robert H. Bork, and Reagan's second nominee, Judge Douglas H. Ginsburg, withdrew following his admission that he had smoked marijuana. Kennedy's confirmation hearings were filled with questions that sought to compare his philosophy to Bork's. Bork had embraced the doctrine of original intent (the idea that a judge should apply the Constitution only in the exact manner intended by the Constitution's Framers) as the only legitimate means of interpretation. Kennedy testified that original intent was only a starting point in interpreting the Constitution. In his Senate testimony, Kennedy stated his commitment to the principle of stare decisis. This principle refers to the respect for legal precedent created by prior cases and the need to maintain precedent even if the current judges do not agree with the original ruling.

Kennedy was confirmed in February 1988, with many liberal members of Congress feeling he was too conservative, and some conservatives believing he was moderate, a compromise candidate who could survive the confirmation process.

Since taking office as associate justice, Kennedy has proved to be both conservative and moderate, depending on the case. He has usually sided with the conservative members of the Court, but he has gained attention by departing from them in two important cases. In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), watchers had expected the Court to overrule explicitly Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, the 1973 decision that defined the right to choose abortion as a fundamental constitutional right. Kennedy joined with Justices Sandra Day O'Connor and David H. Souter in an opinion that defended the reasoning of Roe and the line of cases that followed it.

In 1996 Kennedy wrote a landmark and controversial decision concerning gay rights. In Romer v. Evans, U.S., 116 S. Ct. 1620, 134 L. Ed. 2d 855, Kennedy declared unconstitutional an amendment to the Colorado state constitution (West's C.R.S.A. Const. Art. 2, §30b) that prohibited state and local governments from enacting any law, regulation, or policy that would, in effect, protect the civil rights of gay men, lesbians, and bisexuals. Kennedy ruled that the amendment violated the Equal Protection Clause of the Fourteenth Amendment, noting that the amendment classified gay men and lesbians "not to further a proper legislative end but to make them unequal to everyone else," and adding, "[t]his Colorado cannot do." See also gay and lesbian rights.

This article is about the Associate Justice of the U.S. Supreme Court. For the Maryland senator, see Anthony Kennedy (Maryland).

Anthony McLeod Kennedy
Associate Justice of the United States Supreme Court
Incumbent
Assumed office  February 18, 1988
Nominated by	Ronald Reagan
Preceded by	Lewis F. Powell, Jr.
Judge for the Ninth Circuit U.S. Court of Appeals
In office 1975 – 1988
Nominated by	Gerald Ford
Preceded by	Charles Merton Merrill
Succeeded by	Pamela Ann Rymer
Born	July 23, 1936 (1936-07-23) (age 73) Sacramento, California
Spouse(s)	Mary Davis Kennedy
Alma mater	Stanford University (B.A.) London School of Economics Harvard Law School (LL.B.)
Religion	Roman Catholic[1]

Anthony McLeod Kennedy (born July 23, 1936) is an Associate Justice of the U.S. Supreme Court, having been appointed by Republican President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy is often considered the swing vote on many of the Court's politically charged 5–4 decisions, although he reaches conservative results more often than not.

Contents 1 Personal history 2 Appointment 3 Supreme Court tenure 3.1 Jurisprudence 3.1.1 Abortion 3.1.2 Gay rights and homosexuality 3.1.3 Capital punishment 3.1.4 Gun control 3.1.5 Habeas Corpus 3.1.6 Other issues 4 Analysis of Supreme Court tenure 5 Conservative criticism 6 Outside activities 7 See also 8 References 9 External links

Personal history

Kennedy grew up in Sacramento, California as the son of a prominent attorney. He is not a member of the Kennedy political family. As a boy he came into contact with prominent attorneys such as Earl Warren. He served as a page in the California State Senate as a young man.^[2]

Kennedy graduated from C. K. McClatchy High School in 1954. He was an undergraduate student at Stanford University from 1954-58, graduating with a B.A. in Political Science, after spending his senior year at the London School of Economics.^[3] He earned an LL.B from Harvard Law School in 1961.

Kennedy was in private practice in San Francisco, California, from 1961–1963, then took over his father's practice in Sacramento, California, from 1963–1975 following his father's death.^[2] From 1965 to 1988, he was a Professor of Constitutional Law at the McGeorge School of Law, University of the Pacific^[3] and currently continues teaching law students (including legal seminars during McGeorge's European summer sessions in Salzburg, Austria). He remains Pacific McGeorge's longest-serving active faculty member.

During Kennedy's time as a California legal professor and attorney, he assisted then-California Governor Ronald Reagan with drafting a state tax proposal.^[2]

Kennedy has served in numerous positions during his career, including the California Army National Guard in 1961 and the board of the Federal Judicial Center from 1987-1988. He also served on two committees of the Judicial Conference of the United States: the Advisory Panel on Financial Disclosure Reports and Judicial Activities (subsequently renamed the Advisory Committee on Codes of Conduct) from 1979-1987, and the Committee on Pacific Territories from 1979-1990, which he chaired from 1982–1990. He was appointed to the United States Court of Appeals for the Ninth Circuit by President Gerald Ford in 1975, upon the recommendation of Reagan.^[2]

Appointment

Kennedy was nominated to the Supreme Court after Reagan's failed attempts at placing Robert Bork and Douglas Ginsburg there.^[4][5]

While vetting Kennedy for potential nomination, some of Reagan's Justice Department lawyers said Kennedy was too eager to put courts in such disputes that many conservatives would rather leave to legislatures, and to identify rights not expressly written in the Constitution.^[6] Kennedy's stance in favor of privacy rights drew criticism; Kennedy cited Roe v. Wade and other privacy right cases favorably, which one lawyer called "really very distressing."^[7]

In another of the opinions Kennedy wrote before coming to the Supreme Court, he criticized (in dissent) the police for bribing a child into showing them where the child's mother hid her heroin; Kennedy wrote that "indifference to personal liberty is but the precursor of the state's hostility to it."^[8] The Reagan lawyers also criticized Kennedy for citing a report from Amnesty International to bolster his views in that case.^[8]

Another lawyer pointed out "Generally, [Kennedy] seems to favor the judiciary in any contest between the judiciary and another branch."^[8]

Kennedy endorsed Griswold v. Connecticut as well as the right to privacy, calling it "a zone of liberty, a zone of protection, a line that's drawn where the individual can tell the Government, 'Beyond this line you may not go.'"^[9] This gave Kennedy more bipartisan support than Bork and Ginsburg. The Senate confirmed him by a vote of 97 to 0.^[9]

Supreme Court tenure

Jurisprudence

Appointed by a Republican president, Kennedy’s tenure on the Court has seen him take a somewhat mixed ideological path; he usually takes a conservative viewpoint, but sometimes has looked at cases individually.^[2]

Kennedy, or Sandra Day O'Connor, or both of them, have served as swing voters in many 5-4 or 6-3 decisions during the Rehnquist and Roberts Courts. On issues of religion, he holds to a far less separationist reading of the Establishment Clause than did Sandra Day O'Connor, favoring a "Coercion Test" that he detailed in County of Allegheny v. ACLU.^{[citation needed]}

Kennedy supports a broad reading of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment, which means he supports a constitutional right to abortion in principle, though he has voted to uphold several restrictions on that right, including laws to prohibit partial-birth abortions. He is "tough on crime" and opposes creating constitutional restrictions on the police, especially in Fourth Amendment cases involving searches for illegal drugs, although there are some exceptions, such as his concurrence in Ferguson v. City of Charleston. He opposes affirmative action as promoting stereotypes of minorities.^{[citation needed]} He also takes a very broad view of constitutional protection for speech under the First Amendment,^{[citation needed]} invalidating a congressional law prohibiting "virtual" child pornography in the 2002 decision, Ashcroft v. ACLU.^[10]

Abortion

In 1990, Justice Kennedy upheld a restriction on abortion for minors; it required both parents to consent to the procedure. The case was Hodgson v. Minnesota.

In 1992, he joined Justice Sandra Day O'Connor's controlling plurality opinion in the case of Planned Parenthood v. Casey (1992), which re-affirmed in principle (though not in many details) the Roe v. Wade decision recognizing the right to abortion under the Due Process Clause of the Fourteenth Amendment. The plurality opinion, signed jointly by three justices appointed by the anti-Roe presidential administrations of Ronald Reagan and George H.W. Bush, ignited a firestorm of criticism from conservatives. Kennedy had stated at least as early as 1989 that, in order to uphold precedent, he might not overrule Roe; he had also taught Roe as a professor for fifteen years.^[11] At the same time, Kennedy reportedly had considered overturning Roe, according to court insiders, but in the end decided to uphold restrictions without overturning precedent.^[12]

In later abortion decisions, it became apparent that Kennedy thought Casey had narrowed the Roe decision and allowed more restrictions. Because of a changed composition on the Court under President Clinton, Kennedy was no longer the fifth vote to strike down abortion restrictions. Thus, O'Connor became the Justice who defined the meaning of Casey in subsequent cases while Kennedy was relegated to dissents in trying to explain what he thought the Casey holding meant. For example, Kennedy dissented in the 2000 decision of Stenberg v. Carhart, which struck down laws criminalizing partial-birth abortion.

After the judicial appointments of President George W. Bush, Justice Kennedy again became the needed fifth vote to strike down abortion restrictions. Since Kennedy's conception of abortion rights is more narrow than O'Connor's, this has led to a slightly more lenient review of abortion restrictions since 2006. Kennedy wrote the majority opinion in 2007's Gonzales v. Carhart, which held that a federal law criminalizing partial birth abortion did not violate the principles of Casey because it did not impose an "undue burden." The decision did not expressly overrule Stenberg, although many commentators saw it having that effect.^[13]

Gay rights and homosexuality

Kennedy has often taken a strong stance in favor of expanding Constitutional rights to cover sexual orientation. He wrote the Court's opinion in the controversial 1996 case, Romer v. Evans, invalidating a provision in the Colorado Constitution denying homosexuals the right to bring local discrimination claims. In 2003, he authored the Court's opinion Lawrence v. Texas, which invalidated criminal prohibitions against homosexual sodomy under the Due Process Clause of the United States Constitution, overturning the Court's previous contrary ruling in 1986's Bowers v. Hardwick. In doing so, however, he was very careful to limit the extent of the opinion, declaring that the case did not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. In both cases, he sided with the more liberal members of the Court. Lawrence also controversially referred to foreign laws, specifically ones enacted by the Parliament of the United Kingdom and the European Court of Human Rights, in justifying its result. Kennedy voted, with 4 other Justices, to uphold the Boy Scouts of America's organizational right to ban homosexuals from being scoutmasters in Boy Scouts of America v. Dale in 2000. On 19 October 2009 Justice Kennedy temporarily blocked Washington state officials from releasing the names of people who signed petitions for a referendum ballot measure that would repeal a gay rights domestic partnership law.

Capital punishment

Kennedy has generally voted to restrict the use of the death penalty. With the Court's majority in Atkins v. Virginia and Roper v. Simmons, he held unconstitutional the execution of the mentally ill and those under 18 at the time of the crime. However, in Kansas v. Marsh, he declined to join the dissent, which questioned the overall "soundness" of the existing capital punishment system. His opinion for the Court in Roper, as in Lawrence, made extensive reference to foreign law, drawing the ire of then-House Majority Leader Tom DeLay who called Kennedy's opinion "incredibly outrageous".^[14] Conservative commentator Phyllis Schlafly called for Kennedy's impeachment.[1]

On June 25, 2008, Kennedy authored the 5-4 majority opinion in Kennedy v. Louisiana. The opinion, which was joined by the court's four more liberal judges, held that "[t]he Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim's death." The opinion went on to state, "The court concludes that there is a distinction between intentional first-degree murder, on the one hand, and non-homicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot compare to murder in their severity and irrevocability." The opinion concluded that in cases of crimes against individuals, "the death penalty should not be expanded to instances where the victim's life was not taken." Thus, this ruling is expected to effectively limit the use of the death penalty for a crime against an individual not involving murder. However, it is important to note that this decision is unlikely to impact the use of the death penalty in relation to military justice or for crimes against the state such as terrorism, espionage, or treason.

Conservative commentator Matthew Continetti called the 2008 Kennedy v. Louisiana ruling, which held that the death penalty could not be applied to lesser crimes than homicide, or crimes against the state such as treason, "appalling," writing, "The intellectual backflips Justice Kennedy performed in his opinion would be impressive if they weren't so offensive to constitutionalist sensibilities."^[15]

Gun control

Kennedy most recently ruled on June 26, 2008, with the majority in District of Columbia v. Heller, striking down the ban on handguns in the District of Columbia. At issue in the case was whether Washington, D.C.'s ban violated the right to "keep and bear arms" by preventing individuals—as opposed to state militias—from having guns in their homes. Kennedy's decision had him siding with the traditionally conservative side of the court. The decision came the day after the Court's ruling in Kennedy v. Louisiana, in which Kennedy sided with the traditionally liberal justices.

Habeas Corpus

On June 12, 2008, Kennedy wrote the 5-4 majority opinion in Boumediene v. Bush. The case challenged the legality of Boumediene’s detention at the Guantanamo Bay military base as well as the constitutionality of the Military Commissions Act (MCA) of 2006. He was joined by the four more liberal judges in finding that the constitutionally guaranteed right of habeas corpus applies to persons held in Guantanamo Bay and to persons designated as enemy combatants on that territory. They also found that the Detainee Treatment Act of 2005 failed to provide an adequate substitute for habeas corpus and that the MCA was an unconstitutional suspension of that right.^{[16][17][18][19]}

The Court also concluded that the detainees are not required to exhaust review procedures in the court of appeals before pursuing habeas corpus actions in the district court. In the majority ruling Justice Kennedy called the Combatant Status Review Tribunals "inadequate."^{[16][17][18][19]} He explained, “to hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, 'say what the law is.'”^[20] The decision struck down section seven (7) of the MCA but left intact the Detainee Treatment Act. In a concurring opinion, Justice Souter stressed the fact that the prisoners involved have been imprisoned for as many as six years.^[21]

Other issues

On the issue of the limits of free speech, Kennedy joined a majority to uphold the protection of flag burning in the controversial case of Texas v. Johnson.^[22] Kennedy would write that "It is poignant but fundamental that the flag protects those who hold it in contempt."^[23]

Kennedy has joined with Court majorities in decisions favoring states' rights and invalidating federal and state affirmative action programs. He ruled with the majority on Equal Protection grounds in the controversial 2000 Bush v. Gore case that ceased continuing recounts in the 2000 presidential election and ended the legal challenge to the election of President George W. Bush.

In the 2005 Gonzales v. Raich case, he joined the liberal members of the Court (along with conservative Justice Scalia) in permitting the federal government to prohibit the use of medical marijuana, even in states in which it is legal.^[24] Several weeks later, in the controversial case of Kelo v. City of New London (2005), he joined the four more liberal justices in supporting the local government's power to take private property for economic development through the use of eminent domain.^[25]

Analysis of Supreme Court tenure

Kennedy has reliably issued conservative rulings during most of his tenure, having voted with William Rehnquist as often as any other justice from 1992 to the end of the Rehnquist Court in 2005.^[26] In his first term on the court, Kennedy voted with Rehnquist 92 percent of the time—more than any other justice.^[27]

According to legal writer Jeffrey Toobin, starting in 2003, Kennedy also became a leading proponent of the use of foreign and international law as an aid to interpreting the United States Constitution.^[28] Toobin sees this consideration of foreign law as the biggest factor behind Kennedy's occasional breaking with his most conservative colleagues.^[28] The use of foreign law in Supreme Court opinions dates back to at least 1829, though according to Toobin, its use in interpreting the Constitution on "basic questions of individual liberties" began only in the late 1990s.^[28] Especially after 2005, when Sandra Day O'Connor, who had previously been known as the court's "swing vote", retired, Kennedy began to get that title for himself. Kennedy is more conservative than former Justice O'Connor was on issues of race, religion, and abortion, and intensely dislikes being labeled a "swing vote".^[29]

On the Roberts Court, Justice Kennedy often decides the outcome of a case. In the 2008-2009 term, he was in the majority 92 percent of the time. In the 23 decisions in which the justices split 5-to-4, Kennedy was in the majority in all but five. Of those 23 decisions, 16 were strictly along ideological lines, and Kennedy joined the conservative wing of the court 11 times; the liberals, 5.^[30]

Conservative criticism

According to legal reporter Jan Crawford Greenburg, Kennedy attracts the ire of conservatives when he does not vote with his more rightist colleagues.^[31] According to legal analyst Jeffrey Toobin, conservatives view Kennedy's pro-gay-rights and pro-choice rulings as betrayals.^[28] In the wake of 1996's Romer v. Evans, Ramesh Ponnoru wrote in National Review that Kennedy "is commonly acknowledged as the dimmest of the Court's intellectual lights"; in 2005, associate professor of law David M. Wagner called Kennedy "The worst of Ronald Reagan's appointees to the Court", and claimed he abandoned his conservative principles beginning in the 1990s in order to gain "the plaudits of the media and the Georgetown A-list."^[32] After 2008's Kennedy v. Louisiana, Rich Lowry called Kennedy the Supreme Court's "worst justice" and said that Kennedy's opinions "have nothing whatsoever to do with the Constitution", and amount to "making it up as he goes along."^[33]

According to Greenburg, the "bitter" quality of some movement conservatives' views on Kennedy stems from his eventual rethinking of positions on abortion, religion, and the death penalty (which Kennedy believes should not be applied to juveniles or the mentally challenged).^[31]

A short 2008 law review article by retired lawyer Douglas M. Parker in the legal journal The Green Bag^[34] charged that much of the criticism of Justice Kennedy was based upon "pop psychology" and the Justice's penchant for grandiloquence, rather than careful analysis of his opinions.

Outside activities

Kennedy has been active off the bench as well, calling for reform of overcrowded American prisons in a speech before the American Bar Association. He spends his summers in Salzburg, Austria, where he teaches international and American law at the University of Salzburg for the McGeorge School of Law international program and often attends the large yearly international judges conference held there. Defending his use of international law, Kennedy told the September 12, 2005, issue of The New Yorker, "Why should world opinion care that the American Administration wants to bring freedom to oppressed peoples? Is that not because there’s some underlying common mutual interest, some underlying common shared idea, some underlying common shared aspiration, underlying unified concept of what human dignity means? I think that’s what we’re trying to tell the rest of the world, anyway.”

Justice Kennedy is one of thirteen Catholic justices— of whom six sit in the present court — out of 111 justices in total in the history of the Supreme Court.^[35]

See also

• List of Justices of the Supreme Court of the United States
• List of law clerks of the Supreme Court of the United States
• List of United States Chief Justices by time in office
• List of U.S. Supreme Court Justices by time in office

References

1. ^ Anthony Kennedy from Notable Names Database
2. ^ ^{a b c d e} Christopher L. Tomlins (2005). The United States Supreme Court. Houghton Mifflin. http://books.google.com/books?id=Fy8DjOIxDm0C. Retrieved 2008-10-21. 
3. ^ ^{a b} "LII: US Supreme Court: Justice Kennedy". http://www.law.cornell.edu/supct/justices/kennedy.bio.html. Retrieved 2009-01-10. 
4. ^ Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Pages 53-60.
5. ^ Greenhouse, Linda. (1987, Nov. 30). Washington Talk: Court Politics; Nursing the Wounds From the Bork Fight. The New York Times.
6. ^ Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 53.
7. ^ Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 54.
8. ^ ^{a b c} Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 55.
9. ^ ^{a b} Greenhouse, Linda. Becoming Justice Blackmun. Times Books. 2005. Page 189.
10. ^ FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code
11. ^ Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 80.
12. ^ Savage,James. Turning Right: The Making of the Rehnquist Supreme Court.1993. John Wiley & Sons. Pages 268-269, 288, 466-471
13. ^ Syllabus, GONZALES, ATTORNEY GENERAL v. CARHART ET AL.
14. ^ DeLay blasts Justice Kennedy, Jesse J. Holland, The Associated Press, April 20, 2005
15. ^ An Indecent Decision, Matthew Continetti, The Weekly Standard, July 7, 2008
16. ^ ^{a b} Mark Sherman (June 12, 2008). "High Court: Gitmo detainees have rights in court". Associated Press. http://ap.google.com/article/ALeqM5iS3b8PdQ_oVlJA2eFtDvhnnTUvFwD918J1QO0. Retrieved 2008-06-12. "The court said not only that the detainees have rights under the Constitution, but that the system the administration has put in place to classify them as enemy combatants and review those decisions is inadequate."  mirror
17. ^ ^{a b} Mark Sherman (June 12, 2008). "Terror suspects can challenge detention: U.S. Supreme Court". Globe and Mail. http://www.theglobeandmail.com/servlet/story/RTGAM.20080612.wgitmo0612/BNStory/International/home. Retrieved 2008-06-12. 
18. ^ ^{a b} Mark Sherman (June 12, 2008). "High Court sides with Guantanamo detainees again". Montorey Herald. http://www.montereyherald.com/ci_9562577?nclick_check=1. Retrieved 2008-06-12. 
19. ^ ^{a b} James Oliphant (June 12, 2008). "Court backs Gitmo detainees". Baltimore Sun. http://weblogs.baltimoresun.com/news/politics/blog/2008/06/court_sides_with_gitmo_detaine.html. Retrieved 2008-06-12.  mirror
20. ^ Stuck with Guantánamo (The Economist)
21. ^ "Boumediene et al. v. Bush—No. 06–1195" (PDF). Supreme Court of the United States. June 12, 2008. http://www.scotusblog.com/wp/wp-content/uploads/2008/06/06-1195.pdf. Retrieved 2008-06-15. 
22. ^ Eisler, Kim Isaac (1993). A Justice for All: William J. Brennan, Jr., and the decisions that transformed America. Page 277. New York: Simon & Schuster. ISBN 0671767879
23. ^ Eisler, 277
24. ^ Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 17.
25. ^ Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 18.
26. ^ Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. 2007. Penguin Books. Page 162.
27. ^ Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. 2007. Penguin Books. Page 85.
28. ^ ^{a b c d} http://www.newyorker.com/archive/2005/09/12/050912fa_fact
29. ^ Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. 2007. Penguin Books. Page 177.
30. ^ http://www.nytimes.com/2009/07/01/us/01scotus.html?pagewanted=1
31. ^ ^{a b} Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 86, 162.
32. ^ Beyond "Strange New Respect", David M. Wagner, The Weekly Standard, March 14, 2005
33. ^ America's Worst Justice, Rich Lowry, National Review July 1, 2008
34. ^ Justice Kennedy: The Swing Justice and his Critics, 11 Green Bag 317 (2008)
35. ^ Religious affiliation of Supreme Court justices Justice Sherman Minton converted to Catholicism after his retirement.

• Anthony Kennedy at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.

External links

Wikiquote has a collection of quotations related to: Anthony Kennedy

• "Unenumerated Rights and the Dictates of Judicial Restraint." Address to the Canadian Institute for Advanced Legal Studies, Stanford University. Palo Alto, California. July 24 – Aug. 1, 1986.
• "Kennedy's Benchmarks" by Mark Trapp, American Spectator (July 14, 2004).
• Transcript of Senate Confirmation Hearing, 1987.
• Supreme Court Research Guide and Bibliography: Anthony M. Kennedy
• Collection of notable statements by Anthony Kennedy.
• Jonah Goldberg, "Justice Kennedy's Mind: Where the Constitution resides," 2005.
• Supreme court official bio (PDF)
• Jeffrey Toobin, "Swing Shift: How Anthony Kennedy’s passion for foreign law could change the Supreme Court," The New Yorker (2005).

Legal offices
Preceded by Charles Merton Merrill	Judge of the U.S. Court of Appeals for the Ninth Circuit March 24, 1975 – February 17, 1988	Succeeded by Pamela Ann Rymer
Preceded by Lewis Franklin Powell, Jr.	Associate Justice of the Supreme Court of the United States February 11, 1988 – present	Incumbent
United States order of precedence
Preceded by Antonin Scalia Associate Justice of the Supreme Court of the United States	United States order of precedence Associate Justice of the Supreme Court of the United States	Succeeded by Clarence Thomas Associate Justice of the Supreme Court of the United States

v • d • e Judicial opinions of Anthony Kennedy U.S. Court of Appeals for the Ninth Circuit (1975–1988); by calendar year 1975 • 1976 • 1977 • 1978 • 1979 • 1980 • 1981 • 1982 • 1983 • 1984 • 1985 • 1986 • 1987 • 1988 Supreme Court of the United States (February 18, 1988 – present); by term 1987 • 1988 • 1989 • 1990 • 1991 • 1992 • 1993 • 1994 • 1995 • 1996 • 1997 • 1998 • 1999 • 2000 • 2001 • 2002 • 2003 • 2004 • 2005 • 2006 • 2007 • 2008 • 2009

Supreme Court of the United States

The Rehnquist Court Chief Justice: William Hubbs Rehnquist (1986–2005) 1988–1990: Wm. J. Brennan | B. White | T. Marshall | H. Blackmun | J.P. Stevens | S.D. O'Connor | A. Scalia | A. Kennedy 1990–1991: B. White | T. Marshall | H. Blackmun | J.P. Stevens | S.D. O'Connor | A. Scalia | A. Kennedy | D. Souter 1991–1993: B. White | H. Blackmun | J.P. Stevens | S.D. O'Connor | A. Scalia | A. Kennedy | D. Souter | C. Thomas 1993–1994: H. Blackmun | J.P. Stevens | S.D. O'Connor | A. Scalia | A. Kennedy | D. Souter | C. Thomas | R.B. Ginsburg 1994–2005: J.P. Stevens | S.D. O'Connor | A. Scalia | A. Kennedy | D. Souter | C. Thomas | R.B. Ginsburg | S. Breyer The Roberts Court Chief Justice: John Glover Roberts, Jr. (2005–present) 2005–2006: J.P. Stevens | S.D. O'Connor | A. Scalia | A. Kennedy | D. Souter | C. Thomas | R.B. Ginsburg | S. Breyer 2006–2009: J.P. Stevens | A. Scalia | A. Kennedy | D. Souter | C. Thomas | R.B. Ginsburg | S. Breyer | S. Alito 2009–present: J.P. Stevens | A. Scalia | A. Kennedy | C. Thomas | R.B. Ginsburg | S. Breyer | S. Alito | S. Sotomayor

Persondata
NAME	Kennedy, Anthony McLeod
ALTERNATIVE NAMES
SHORT DESCRIPTION	Associate Justice of the U.S. Supreme Court
DATE OF BIRTH	July 23, 1936
PLACE OF BIRTH	Sacramento, California
DATE OF DEATH
PLACE OF DEATH

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