Anthony Kennedy
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| Anthony McLeod Kennedy | |
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| Incumbent | |
| Assumed office February 18, 1988 |
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| Nominated by | Ronald Reagan |
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| Preceded by | Lewis Franklin Powell, Jr. |
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| Born | July 23, 1936 Sacramento, California |
| Spouse | Mary Davis Kennedy |
| Alma mater | Stanford University |
| Religion | Roman Catholic |
Anthony McLeod Kennedy (born July 23, 1936) has been an Associate Justice of the U.S. Supreme Court since 1988. Appointed by Republican President Ronald Reagan, he acts as the Court's swing vote in many cases, and as a result has held special prominence in many politically charged 5-4 decisions.
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[edit] Personal history
Kennedy was born in Sacramento, California. Kennedy, a Roman Catholic, married Mary Davis, with whom he had three children. He is not related to the Kennedy family of American politics.
He received his B.A. in Political Science from Stanford University in 1958. He also spent part of his undergraduate time at the London School of Economics before earning 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. From 1965 to 1988, he was a Professor of Constitutional Law at University of the Pacific, McGeorge School of Law 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.
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.
[edit] Supreme Court tenure
[edit] Ideology
Republican and conservative, Kennedy’s tenure on the Court has seen him take a somewhat mixed path. Kennedy's philosophy seems to be conservative and libertarian. While Kennedy has joined the conservative wing of the Court in most cases such as Stenberg v. Carhart, he has confounded constitutional law scholars by often forgoing conventional methods of explaining his holding and instead relying on vivid prose and unusual philosophy. Decisions in which Kennedy has mentioned European law have been frequently criticized, particularly by political conservatives.[1][2][3]
Kennedy will probably be remembered historically along with Sandra Day O'Connor as one of two swing voters in many 5-4 decisions during the Rehnquist Court. 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.
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. 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.[4]
[edit] Abortion
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 (Kennedy initially voted to uphold the restrictions on abortion at issue and considered going as far as to overturn Roe but subsequented switched that aspect of his vote during the consideration of Casey).[5] 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. 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 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 see it having that effect.[1]
[edit] 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 referenced international law in justifying its result. Kennedy voted 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.
[edit] 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 international law, drawing the ire of then-House Majority Leader Tom DeLay who called Kennedy's opinion "incredibly outrageous" but stopped short of calling for his impeachment.
[edit] Other issues
On the other hand, Kennedy has joined with Court majorities in decisions favoring states' rights and invalidating federal and state affirmative action programs when they required racial discriminating against any race including whites. 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. 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.
Kennedy has been active off of 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.”
[edit] References
- ^ Annals of Law: Swing Shift: The New Yorker
- ^ Beyond "Strange New Respect"
- ^ Justice Kennedy's New Rule of Law
- ^ FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code
- ^ Charles Lane, "All Eyes on Kennedy in Court Debate On Abortion," Washington Post, Nov. 8, 2006.
[edit] External links
- "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," New Yorker (2005).
| Legal offices | ||
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| Preceded by Charles Merton Merrill |
Judge of the U.S. Court of Appeals for the Ninth Circuit 1975-1988 |
Succeeded by Pamela Ann Rymer |
| Preceded by Lewis Franklin Powell, Jr. |
Associate Justice of the Supreme Court of the United States 1988-present |
Incumbent |
| Order of precedence in the United States of America | ||
| Preceded by Antonin Scalia |
United States order of precedence as of 2008 |
Succeeded by David Souter |
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| Persondata | |
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| 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 | |
