Anthony M. Kennedy

• NOMINATED BY: Ronald Reagan
• SIGNIFICANCE: A moderately conservative justice with distinct libertarian tendencies, Kennedy often provided the swing vote on important issues before the Supreme Court.

The son of a prominent lawyer, Anthony McLeod Kennedy was born on July 23, 1936, in Sacramento, California. He earned a bachelor’s degree in political science from Stanford University and a law degree from Harvard Law School in 1961. After his graduation, he worked for a prestigious law firm in San Francisco but left in 1963 to take over his deceased father’s law practice in Sacramento. In addition to being a successful lawyer, he actively worked with the Republican Party, and established personal friendships with people such as Edward Meese. In 1975, President Gerald Ford nominated him to the Court of Appeals for the Ninth Circuit, on which he wrote more than four hundred decisions over the next thirteen years. He also found the time to teach constitutional law at California’s University of the Pacific from 1965 to 1988.

In late 1987, President Ronald Reagan nominated Kennedy as associate justice of the Supreme Court. Kennedy was Reagan’s third nominee to replace the centrist Lewis F. Powell, Jr. After the contentious and unsuccessful nominations of Robert Bork and Douglas Ginsburg, Reagan was looking for a reliable conservative judge with a noncontroversial reputation for stability, competence, and moderation. Although both liberals and conservatives on the Senate Judiciary Committee expressed reservations about Kennedy’s views, he made a favorable impression as a highly competent and open-minded man of judicial temperament, and the Senate confirmed him with a 97–0 vote. He took his seat on February 18, 1988.

During his first few years on the Court, Kennedy had a strongly conservative record, most often voting with Chief Justice William H. Rehnquist and Justice Antonin Scalia. The chief justice assigned an unusually large number of opinions to Kennedy, and some commentators referred to him as "Rehnquist’s lieutenant."

It was widely assumed that Kennedy, a practicing Roman Catholic, favored the reversal of Roe v. Wade, which had recognized the right of women to terminate unwanted pregnancies. This was particularly true after he joined a 5–4 majority in approving restrictions on abortions in Webster v. Reproductive Health Services (1989). However, in the highly publicized case, Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), he surprised observers with his support for the 5–4 majority that reaffirmed Roe, joining the plurality opinion that the rejection of an established precedent required more than simply a belief that the case had been wrongly decided. Kennedy continued, nevertheless, to approve of restrictions on abortion. He dissented, for example, in Stenberg v. Carhart (2000), when the majority struck down Nebraska’s law that criminalized partial-birth abortions.

Despite his conservative status, Kennedy's libertarian streak led him to become an important supporter of gay rights in several cases. He wrote the Court’s opinion in Romer v. Evans (1996), invalidating a section in Colorado’s constitution that forbade communities from passing antidiscrimination ordinances to protect gay and lesbian people. However, gay activists were disappointed when he voted with the majority in Boy Scouts of America v. Dale (2000), recognizing that the organization’s rights of expression and association permitted it to ban gay scoutmasters. He returned to his support for gay rights in Lawrence v. Texas (2003), writing the Court’s opinion holding that states may not prohibit homosexual relations between consenting adults. One of the most notable aspects of Kennedy’s Lawrence opinion was its many references to European jurists and international law as references for interpreting the US Constitution.

In addition to his work on the Court, Kennedy was not timid about speaking out on public policy issues. In July 2003, Attorney General John Ashcroft announced that the Department of Justice would monitor whether federal judges were imposing the federal mandatory minimum sentences. Kennedy responded in a speech to the American Bar Association on August 9, 2003. Calling the guidelines "unwise and unjust," he declared, "Our resources are misspent, our punishments too severe, our sentencing too long," and he urged ABA members to work toward reforming the criminal justice in a more humane way. Observing the social costs of giving long sentences for the possession of small amounts of marijuana, he concluded that "out of sight, out of mind is an unacceptable excuse for a prison system that incarcerates over two million human beings in the United States."

During the early twenty-first century, Kennedy joined the liberal wing of the Court in many high-profile cases. He authored the majority opinion in Roper v. Simmons (2005), prohibiting the executions of felons younger than eighteen when they commit their crimes. He also authored the official opinion in Ashcroft v. Free Speech Coalition (2002), declaring that the government had no constitutional authority to prohibit computer-generated child pornography. In the highly controversial case, Kelo v. City of New London (2005), he joined the liberals in supporting local governments’ use of eminent domain to take private property for economic development.

However, Kennedy also was frequently on the side of the more conservative justices, as when he dissented in Rompilla v. Beard (2005), arguing that the Court should be very cautious about making after-the-fact judgments about the strategies and qualifications of defense attorneys. He voted with the minority in Grutter v. Bollinger (2003), opposing the use of racial preferences for university admissions to promote diversity. In Hudson v. Michigan (2006), he supported the use of criminal evidence obtained in a search when the officers did not follow the procedure of "knock and announce," although he wrote a separate concurrence saying that the decision would not affect other applications of the exclusionary rule. Often he supported states’ rights, although in the highly publicized case of Bush v. Gore (2000), he angered liberals when supporting the cessation of the recount of Florida ballots, ensuring the victory of President George W. Bush.

In early 2006, when Justice Sandra Day O’Connor, who had often provided the swing vote, was replaced by Samuel Alito, whose record was quite conservative, commentators noted that this change left Kennedy as the most centrist of the nine justices. For this reason, it was widely expected that his positions would have a disproportionate impact on the direction of the court through the next few years. During the second half of the Court’s 2005–6 term, he did indeed provide the swing vote in a number of 5–4 decisions. In the Hudson ruling, for example, he joined with the four more conservative justices to allow for an exception in the application of the exclusionary rule. In the case of Rapanos v. United States, in contrast, he joined with the four more liberal justices to prevent a significant weakening of the Clean Water Act (1972), though he did not fully agree with either side.

Another 5–4 decision in which Kennedy provided the swing vote, this time for the conservatives, was Gonzales v. Carhart (2007), in which he also wrote the majority opinion upholding the national partial-birth abortion ban. In 2008, he wrote the majority opinion for the liberal wing in Boumediene v. Bush, finding that the Constitution provides the right to seek habeas corpus to detainees in the Guantanamo Bay prison. In 2010 he provided a major victory for conservatives as the deciding vote and author of the majority opinion in the widely debated landmark case Citizens United v. Federal Election Commission, which opened the gates to unlimited independent expenditure on political communication, including by corporations.

Though Kennedy was widely criticized by many liberals and even some conservatives for his role in Citizens United, he was hailed by progressives for continuing to support LGBT rights. In 2013, he was the majority opinion author in the 5–4 decision on United States v. Windsor, which found that the section of the Defense of Marriage Act (DOMA) interpreting "marriage" as solely between a man and a woman was unconstitutional. Then, in 2015, he authored another 5–4 majority opinion for the court's liberal wing in Obergefell v. Hodges, which made same-sex marriage legal at the federal level.

In late June 2018, Kennedy announced in a letter to President Donald Trump that he would retire from the Supreme Court at the end of the next month. The decision immediately earned a great deal of attention and controversy, as replacing such a key swing vote had the potential to radically shape the court—and therefore federal law—for years to come. Trump nominated conservative justice Brett M. Kavanaugh, who was approved as Kennedy’s replacement by a 50–48 vote after a contentious Congressional hearing.

After retirement, Kennedy spent time working on his memoirs. In 2024, he published a two-volume memoir, with one volume focusing on his life before he became a Supreme Court justice and the other following his career on the nation’s highest court. Life and Law: The Early Years and Life and Law: The Court Years were published in October.

Bibliography

"Anthony Kennedy Fast Facts." CNN, 6 July 2023, www.cnn.com/2013/02/22/us/anthony-kennedy-fast-facts/index.html. Accessed 15 Oct. 2024.

“Anthony M. Kennedy to Reflect on His Life and His Years on the Supreme Court in Two-Volume Memoir." Politico, 2 Apr. 2024, www.politico.com/news/2024/04/02/anthony-kennedy-supreme-court-memoir-00150104. Accessed 15 Oct. 2024.

Bader, William H., and Roy M. Mersky, eds. The First One Hundred Eight Justices. Buffalo, N.Y.: William S. Hein, 2004.

Deegan, Paul. Anthony Kennedy. New York: ABDO, 2001.

Eastland, Terry. "The Tempting of Justice Kennedy." American Spectator 26, no. 2 (1993): 32-38.

Hensley, Thomas R. The Rehnquist Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2006.

Keck, Thomas M. The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism. Chicago: University of Chicago Press, 2004.

Shear, Michael D. "Supreme Court Justice Anthony Kennedy Will Retire." The New York Times, 27 June 2018,www.nytimes.com/2018/06/27/us/politics/anthony-kennedy-retire-supreme-court.html. Accessed 15 Oct. 2024.

Toobin, Jeffrey. "Swing Shift: How Anthony Kennedy’s Passion for Foreign Law Could Change the Supreme Court," New Yorker, September 12, 2005.

Tushnet, Mark. A Court Divided: the Rehnquist Court and the Future of Constitutional Law. New York: W. W. Norton, 2005.

Yarbrough, Tinsley. The Rehnquist Court and the Constitution. New York: Oxford University Press, 2000.