Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by President Ronald Reagan, and sworn in on February 18, 1988. After the retirement of Sandra Day O'Connor in 2006, he was the swing vote on many of the Roberts Court's 5–4 decisions.
Born in Sacramento, California, Kennedy took over his father's legal practice in Sacramento after graduating from Harvard Law School. In 1975, President Gerald Ford appointed Kennedy to the United States Court of Appeals for the Ninth Circuit. In November 1987, after two previous attempts at nominating a successor to Associate Justice Lewis F. Powell Jr., President Reagan nominated Kennedy to the Supreme Court. Kennedy won unanimous confirmation from the United States Senate in February 1988. Kennedy became the most senior Associate Justice of the Court following the death of Antonin Scalia in February 2016 until his transition to senior status in July 2018. Kennedy retired during the administration of President Donald Trump and was succeeded by Brett Kavanaugh.
He authored the majority opinion in several important cases, including Boumediene v. Bush and Citizens United v. FEC. Kennedy wrote in part the majority opinions in Planned Parenthood v. Casey. He is also known for his majority opinions in each of the Court's landmark gay rights cases: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges.
Early life and education
Kennedy was born and raised in an Irish Catholic family in Sacramento, California. He was the son of Anthony J. Kennedy, an attorney with a reputation for influence in the California legislature, and Gladys (née McLeod), who participated in many local civic activities. As a boy, Kennedy came into contact with prominent politicians of the day, such as California Governor and later U.S. Chief Justice Earl Warren. He served as a page in the California State Senate as a young man. Kennedy attended C. K. McClatchy High School where he was an honors student and graduated in 1954.
Following in his mother's footsteps, Kennedy enrolled at Stanford University where he developed an interest with constitutional law. Kennedy graduated with a Bachelor of Arts in political science in 1958, after spending his senior year at the London School of Economics. He then attended Harvard Law School where he graduated with a Bachelor of Laws cum laude in 1961.
Kennedy was in private practice in San Francisco from 1961 to 1963. In 1963, following his father's death, he took over his father's Sacramento practice, which he operated until 1975. From 1965 to 1988, he was a Professor of Constitutional Law at McGeorge School of Law, at the University of the Pacific. He continues to teach law students at 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 law professor and attorney, he helped California Governor Ronald Reagan draft a state tax proposal.
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 to 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 to 1987, and the Committee on Pacific Territories from 1979 to 1990, which he chaired from 1982 to 1990.
On March 3, 1975, upon Reagan's recommendation, President Gerald Ford nominated Kennedy to the seat on the United States Court of Appeals for the Ninth Circuit that had been vacated by Charles Merton Merrill. Kennedy was unanimously confirmed by the U.S. Senate on March 20 and received his commission on March 24, 1975.
Appointment to the Supreme Court
On November 11, 1987, President Reagan nominated Kennedy to the Supreme Court seat vacated by Lewis F. Powell Jr., who announced his retirement in late June. Kennedy's nomination followed Reagan's failure to appoint Robert Bork, who was nominated in July but rejected by the Senate on October 23, or Douglas Ginsburg, who withdrew his name from consideration on November 7 after admitting to marijuana use. Kennedy was then subjected to an unprecedentedly thorough investigation of his background, which he easily passed.
In a Ninth Circuit dissent that Kennedy wrote before joining the Supreme Court, he criticized police for bribing a child into showing them where the child's mother hid drugs. Considering such conduct offensive and destructive of the family, Kennedy wrote that "indifference to personal liberty is but the precursor of the state's hostility to it." Kennedy wrote an article the year before, however, about judicial restraint, and the following excerpt from it was read aloud at his confirmation hearing:
One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system. Many argue that a just society grants a right to engage in homosexual conduct. If that view is accepted, the Bowers decision in effect says the State of Georgia has the right to make a wrong decision—wrong in the sense that it violates some people's views of rights in a just society. We can extend that slightly to say that Georgia's right to be wrong in matters not specifically controlled by the Constitution is a necessary component of its own political processes. Its citizens have the political liberty to direct the governmental process to make decisions that might be wrong in the ideal sense, subject to correction in the ordinary political process.
Kennedy said about Griswold v. Connecticut, a privacy case about the use of contraceptives, "I really think I would like to draw the line and not talk about the Griswold case so far as its reasoning or its result." He also discussed "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.'"
His hearings before the Senate judiciary committee began on December 14, and lasted just three consecutive days. When the Senate voted on Kennedy's nomination, he received bipartisan support. Maureen Hoch of PBS wrote that he "virtually sailed through the confirmation process and was widely viewed by conservatives and liberals alike as balanced and fair". The U.S. Senate confirmed him on February 3, 1988, by a vote of 97 to 0. Absent from the vote were three Democrats: Paul Simon and Al Gore were campaigning and Joe Biden was ill. Attorney General Edwin Meese presented Kennedy's commission to the Court in a swearing-in ceremony on February 18, 1988.
Retirement from the Supreme Court
In a letter to President Trump dated June 21, 2018, Justice Kennedy announced his retirement from the Supreme Court and transition to senior status, effective July 31, 2018. Kennedy will continue to serve the courts as a senior associate justice pursuant to. In his last major public appearance before his transition, Kennedy spoke at the 2018 Ninth Circuit Judicial Conference, which was held in Anaheim, California. Kennedy was interviewed by Edward J. Davila, U.S. District Judge, San Jose, California; Autumn D. Spaeth, U.S. Magistrate Judge, Santa Ana, California; and Darrel J. Gardner, Federal Public Defender in Anchorage, Alaska. In response to a question by Gardner, Justice Kennedy described issues relating to prosecutorial over-charging, and later he spoke critically about over-incarceration in the United States. Kennedy also expressed his views against the use of solitary confinement, and he spoke of his goal of pursuing prison reform in the future.
Although appointed by a Republican president, Kennedy is not easily pigeonholed ideologically. He has tended to look at cases individually instead of deciding them on the basis of a rigid ideology. As Kennedy said at a reunion of his law clerks, "We always tried to get it right." Conservative pundit George Will and Georgetown University Law Center professor Randy Barnett have described Kennedy's jurisprudence as "libertarian", although other legal scholars have disagreed.
Kennedy and Sandra Day O'Connor were swing votes in many 5–4 and 6–3 decisions on the Rehnquist and Roberts courts. On issues of religion, he holds to a less separationist reading of the Establishment Clause than did O'Connor, favoring a "Coercion Test" that he detailed in County of Allegheny v. ACLU. He also provided an opinion in Town of Greece v. Galloway case, concluding, "The town of Greece does not violate the First Amendment's Establishment Clause by opening its meetings with sectarian prayer that comports with America's tradition and doesn't coerce participation by nonadherents."
Kennedy has supported adding substance to the "liberty" interest 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 also takes a very broad view of constitutional protection for speech under the First Amendment, invalidating a congressional law prohibiting "virtual" child pornography in the 2002 decision, Ashcroft v. ACLU.
In Hodgson v. Minnesota (1990), Kennedy upheld a restriction on abortion for minors that required both parents to be notified about the procedure.
In 1992, he joined O'Connor's plurality opinion in Planned Parenthood v. Casey (1992), which reaffirmed in principle (though without 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 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 vote to overturn Roe. According to court insiders, Kennedy had reportedly considered overturning Roe, but in the end decided to uphold restrictions while affirming the Roe precedent.
In later abortion decisions, it became apparent that Kennedy thought Casey had narrowed Roe and allowed more restrictions. Owing to the Court's altered composition under President Clinton, Kennedy was no longer the fifth vote to strike down abortion restrictions. Hence, O'Connor became the justice who defined the meaning of Casey in subsequent cases, while Kennedy was relegated to dissents in which he sought to explain what he thought Casey meant. For example, Kennedy dissented in the 2000 decision in Stenberg v. Carhart, which struck down laws criminalizing partial-birth abortion.
After the judicial appointments by President George W. Bush, Kennedy again became the needed fifth vote to strike down abortion restrictions. Since Kennedy's conception of abortion rights is narrower than O'Connor's, this led to a Court slightly more supportive of abortion restrictions after 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 Casey because it did not impose an "undue burden". The decision did not expressly overrule Stenberg, although many commentators saw it as having that effect.
Gay rights and homosexuality
Kennedy's concept of liberty has included protections for sexual orientation. As early as 1980, then-Judge Kennedy speculated that some homosexual behavior is constitutionally protected. He wrote the Court's opinion in the 1996 case Romer v. Evans, invalidating a provision in the Colorado Constitution denying homosexuals the right to bring local discrimination claims. In 2003, he wrote the Court's opinion in Lawrence v. Texas, which invalidated criminal laws against homosexual sodomy on the basis of the Due Process Clause of the United States Constitution, overturning the Court's previous ruling in 1986's Bowers v. Hardwick. In both cases, he sided with the more liberal members of the Court. The decision in Lawrence also controversially cited foreign laws, specifically ones enacted by the Parliament of the United Kingdom, and a decision of the European Court of Human Rights, in partly justifying the result.
In the 2000 case of Boy Scouts of America v. Dale, Kennedy voted, with four other justices, to uphold the Boy Scouts of America's organizational right to ban homosexuals from being scoutmasters.
On October 19, 2009, Kennedy temporarily blocked Washington state officials from releasing the names of people who signed petitions calling for a referendum ballot measure that would repeal a gay rights domestic partnership law, but joined the subsequent majority decision in Doe v. Reed, which stated the Washington law permitting signature release was constitutional, but remanded the matter to the lower court to determine whether the release of this particular petition's signatures was constitutional.
In the 2010 case Christian Legal Society v. Martinez, the Court held that a public law college's policy requiring that all student organizations allow any student to join was constitutional. The Christian Legal Society wanted an exemption from the policy because the organization barred students based on religion and sexual orientation. Hastings College of Law refused to grant the exemption. The Court found that Hastings' policy was reasonable and viewpoint neutral. Kennedy wrote a concurrence joining the majority.
On August 4, 2010, Dahlia Lithwick wrote about Judge Vaughn R. Walker's ruling that overturned California's Proposition 8 banning same-sex marriage, Walker "is not Anthony Kennedy. But when the chips are down, he certainly knows how to write like him. I count—in his opinion today—seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans … and eight citations to his 2003 decision in Lawrence v. Texas … In a stunning decision this afternoon … Walker trod heavily on the path Kennedy has blazed on gay rights." The next day, Lithwick said on ABC's Good Morning America, "Walker's ruling that California's ban on same-sex marriage is unconstitutional was aimed at one man: Justice Anthony Kennedy."
On June 26, 2013, Section 3 of the Defense of Marriage Act was held unconstitutional in United States v. Windsor. In the majority opinion on this case, Kennedy wrote, "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."
Two years later, Kennedy authored the majority ruling in the decision of Obergefell v. Hodges, which holds that same-sex couples must be allowed to marry nationwide. The closing paragraph of Kennedy's ruling has been used by many couples in their marriage vows:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.
With the Court's majority in Atkins v. Virginia and Roper v. Simmons, Kennedy agreed that the execution of the mentally ill and those under 18 at the time of the crime was unconstitutional. In Kansas v. Marsh, however, he declined to join the dissent, which questioned the overall "soundness" of the existing capital punishment system.
In 2008, Kennedy wrote the majority opinion in Kennedy v. Louisiana. The opinion, joined by the court's four more liberal justices, held, "[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."
On June 26, 2008, Kennedy joined the majority in District of Columbia v. Heller, which struck down the ban on handguns in the District of Columbia. At issue was whether Washington, D.C.'s ban violated the right to "keep and bear arms" by preventing individuals from having guns in their homes. Kennedy sided with the conservatives on the Court, holding that the Second Amendment recognized an individual's right to keep and bear arms. (The decision came the day after the Court's ruling in Kennedy v. Louisiana, a capital punishment decision written by Kennedy, in which he sided with the liberal justices.) Two years later, in McDonald v. Chicago, Kennedy joined the majority opinion holding that the Second Amendment's protections for the right to keep and bear arms are incorporated against the states through the Due Process Clause of the Fourteenth Amendment.
Kennedy wrote the majority decision in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (2009), which involved an Alaskan mining company that planned to extract new gold from a mine that had been closed for decades using a technique known as "froth-flotation". This technique would produce approximately 4.5 million tons of "slurry", a thick waste product laced with toxic elements such as lead and mercury. The company intended to dispose of the waste in a nearby lake, which would eventually decrease the depth of the lake by fifty feet and flood the surrounding land with contaminated water. While federal law forbids "[t]he use of any river, lake, stream or ocean as a waste treatment system", Kennedy's decision stated that pollutants are exempt from this law so long as they have "the effect of … changing the bottom elevation of water". Justice Ginsburg's dissent stated that such a reading of federal law "strains credulity" because it allows "[w]hole categories of regulated industries" to "gain immunity from a variety of pollution-control standards".
On June 12, 2008, Kennedy wrote the 5–4 majority opinion in Boumediene v. Bush. The case challenged the legality of Lakhdar Boumediene's detention at the Guantanamo Bay military base as well as the constitutionality of the Military Commissions Act (MCA) of 2006. Kennedy 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.
The Court also concluded that the detainees are not required to exhaust review procedures in the court of appeals before seeking habeas relief in the district court. In the ruling, Kennedy called the Combatant Status Review Tribunals "inadequate". 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.'" 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.
Justice Kennedy's majority opinion in Citizens United found that the BCRA §203 prohibition of all independent expenditures by corporations and unions violated the First Amendment's protection of free speech. The majority wrote, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."
Justice Kennedy's opinion for the majority also noted that because the First Amendment does not distinguish between media and other corporations, these restrictions would allow Congress to suppress political speech in newspapers, books, television, and blogs. The Court overruled Austin, which had held that a state law that prohibited corporations from using treasury money to support or oppose candidates in elections did not violate the First and Fourteenth Amendments. The Court also overruled that portion of McConnell that upheld BCRA's restriction of corporate spending on "electioneering communications". The Court's ruling effectively freed corporations and unions to spend money both on "electioneering communications" and to directly advocate for the election or defeat of candidates (although not to contribute directly to candidates or political parties).
On October 25, 2011, Richard L. Hasen wrote that in the 2012 election super PACs "will likely replace political parties as a conduit for large, often secret contributions, allowing an end run around the $2,500 individual contribution limit and the bar on corporate and labor contributions to federal candidates". According to Hasen, the rise of super PACs dates to a sentence in Kennedy's opinion in Citizens United: "We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." Kennedy also wrote in his opinion that he was not concerned if higher expenditures by people or corporations were viewed as leading to corruption, stating, "... the appearance of influence or access will not cause the electorate to lose faith in this democracy."
On the issue of the limits of free speech, Kennedy joined a majority to protect flag burning in the controversial case of Texas v. Johnson (1989). In his concurrence, Kennedy wrote, "It is poignant but fundamental that the flag protects those who hold it in contempt."
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 halted continuing recounts in the 2000 presidential election and ended the legal challenge to the election of President George 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 where it is legal. 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.
In Norfolk & Western Railway Co. v. Ayers (2003), Kennedy wrote a partial dissent in which he argued that railroad workers who had contracted asbestosis from their employment should not be entitled to recovery for the emotional pain and suffering from their increased risk of cancer.
In Baze v. Rees, Kennedy played a deciding role in the outcome of lethal injection. Some correspondents believed he would play a larger role, believing more than two judges would dissent.
A December 2011 article in the Huffington Post noted that Kennedy dissented on an interpretation of the Sixth Amendment right to confront witnesses, where a lab tech who created a forensic report on a case is required to testify at trial if called. His dissent, joined by Roberts, Breyer, and Alito, claimed that the rule would place a burden on understaffed labs. However, in Williams v. Illinois, Kennedy sided with Scalia's interpretation of the amendment.
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. In his first term on the court, Kennedy voted with Rehnquist 92 percent of the time—more than any other justice.
After 2005, when Sandra Day O'Connor, who had previously been known as the court's "swing vote", retired, Kennedy began to receive the 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".
On the Roberts Court, 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.
In the 2010–2011 term, 16 cases were decided by a 5–4 vote, and Kennedy joined the majority in 14 of the decisions.
According to legal writer Jeffrey Toobin, starting in 2003, Kennedy became a leading proponent of the use of foreign and international law as an aid to interpreting the United States Constitution. Toobin sees this consideration of foreign law as the biggest factor behind Kennedy's occasional breaking with his most conservative colleagues. 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. A profile of Kennedy in the Los Angeles Times on June 14, 2008, focused on his internationalist perspective. According to David Savage, Kennedy had become a strong proponent of interpreting the guarantees of liberty and equality in line with modern human rights law: "lawyers and judges have come to believe the basic principles of human rights are common to the peoples of world."
According to legal reporter Jan Crawford, Kennedy attracts the ire of conservatives when he does not vote with his more conservative colleagues. In 2005, Tom DeLay criticized Kennedy for his reliance on international law and for conducting his own Internet research, calling him a judicial activist. According to legal analyst Jeffrey Toobin, some conservatives view Kennedy's pro-gay-rights and pro-choice rulings as betrayals. 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).
A short 2008 law review article by retired lawyer Douglas M. Parker in the legal journal The Green Bag charged that much of the criticism of Kennedy was based upon "pop psychology", rather than careful analysis of his opinions. Kennedy himself responds to concerns about judicial activism this way: "An activist court is a court that makes a decision you don't like."
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, in 2005 Kennedy told The New Yorker staff writer Jeffrey Toobin, "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."
In January 2015, Kennedy recorded a short interview for Historic Mount Vernon about the vital role George Washington had played in the drafting and early interpretation of the Constitution.
Kennedy is one of fourteen Catholic justices—of whom five sit on the Court as of 2018—out of 114 justices in total in the history of the Supreme Court.