| Anthony Kennedy | |
|---|---|
| Associate Justice of the United States Supreme Court | |
| Incumbent | |
| Assumed office February 18, 1988 |
|
| Nominated by | Ronald Reagan |
| Preceded by | Lewis Powell |
| Judge of the United States Court of Appeals for the Ninth Circuit | |
| In office May 30, 1975 – February 18, 1988 |
|
| Nominated by | Gerald Ford |
| Preceded by | Charles Merrill |
| Succeeded by | Pamela Rymer |
| Personal details | |
| Born | July 23, 1936 Sacramento, California, U.S. |
| Spouse(s) | Mary Davis |
| Alma mater | Stanford University London School of Economics Harvard Law School |
| Religion | Roman Catholicism[1] |
Anthony McLeod Kennedy (born July 23, 1936) is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the "swing vote" on many of the Court's politically charged 5–4 decisions.[2][3][4]
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Kennedy was born and raised in Sacramento, California, the son of Anthony J. Kennedy, an attorney with a reputation for influence in the California legislature, and Gladys McLeod, who participated in many local civic activities.[5] 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.[6] He is not a member of the Kennedy political family.
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.[7] He earned an LL.B from Harvard Law School, graduating cum laude in 1961.
Kennedy was in private practice in San Francisco, from 1961 to 1963, then took over his father's practice in Sacramento from 1963 to 1975 following his father's death.[6] From 1965 to 1988, he was a Professor of Constitutional Law at the McGeorge School of Law, University of the Pacific[7] 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 law professor and attorney, he assisted then-California Governor Ronald Reagan with drafting a state tax proposal.[6]
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.
On March 3, 1975, upon Reagan's recommendation,[6] President Gerald Ford nominated Kennedy to a seat on the United States Court of Appeals for the Ninth Circuit vacated by Charles Merton Merrill. Kennedy was unanimously confirmed by the United States Senate on March 20, 1975, and received his commission on March 24, 1975.
On November 30, 1987, Kennedy was nominated to the Supreme Court seat vacated by Lewis F. Powell, Jr., after Reagan's failed attempts at placing Robert Bork (formally rejected by the Senate) and Douglas Ginsburg (withdrew from consideration).[8][9] Following Ginsburg's withdrawal for admitted marijuana use, Kennedy was subjected to a then unprecedentedly thorough investigation of his background, which he easily passed.
In a lower court dissent that Kennedy had written before coming to the Supreme Court, he criticized the police for bribing a child into showing them where the child's mother hid drugs, believing such conduct was offensive and destroyed the family; Kennedy wrote that "indifference to personal liberty is but the precursor of the state's hostility to it."[10] However, Kennedy had written an article the year before about judicial restraint, and this excerpt 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.[11]
Kennedy said about Griswold v. Connecticut (a privacy case regarding 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."[12] 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.'"[13][14] Ultimately, Kennedy gained more bipartisan support than Bork and Ginsburg. The United States Senate confirmed him on February 3, 1988, by a vote of 97 to 0.[14] Kennedy received his commission on February 11, 1988.
Appointed by a Republican president, Kennedy’s tenure on the Court has seen him take a somewhat mixed ideological path; he looks at cases individually rather than adhering to any rigid ideology.[6] As Kennedy told a reunion of his law clerks, "We always tried to get it right." Georgetown University Law Center professor Randy Barnett has described Kennedy's jurisprudence as "libertarian,"[15] although other legal scholars have disagreed.[16]
Kennedy and Sandra Day O'Connor have been swing votes in many 5-4 and 6-3 decisions during 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.
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.[17]
In Hodgson v. Minnesota (1990), Kennedy upheld a restriction on abortion for minors requiring 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 to uphold precedent he might not overrule Roe.[18] 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.[19]
In later abortion decisions, it became apparent that Kennedy thought Casey had narrowed Roe 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 Casey meant. For example, Kennedy dissented in the 2000 decision of Stenberg v. Carhart, which struck down laws criminalizing partial-birth abortion.[20]
After the judicial appointments of President George W. Bush, 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 Casey because it did not impose an "undue burden." The decision did not expressly overrule Stenberg, although many commentators saw it having that effect.[21][22]
Kennedy's concept of "liberty" has included some protections for sexual orientation. 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 authored the Court's opinion in 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 ruling in 1986's Bowers v. Hardwick. 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 partly justifying its result.[23]
Kennedy voted, with four 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 October 19, 2009, 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 but joined the subsequent majority decision in Doe v. Reed that the Washington law permitting signature release was constitutional, but remanding 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.
Kennedy has shown an open mind with regard to capital punishment, upholding it in specific cases, voting to restrict the right of unlimited habeas review by federal courts, while voting to restrict the use of the death penalty with regard to minors and the mentally ill. With the Court's majority in Atkins v. Virginia and Roper v. Simmons, he voted to hold 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.
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."[24]
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—as opposed to state militias—from having guns in their homes. Kennedy sided with the conservative side of the Court, holding that the Second Amendment conferred an individual right to keep and bear arms. (The decision came the day after the Court's ruling in Kennedy v. Louisiana, a capital punishment decision authored by Kennedy, in which he sided with the liberal justices.) Kennedy similarly voted to extend Heller's holding to the states in McDonald v. Chicago, which was filed on June 28, 2010.
Kennedy authored 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,” 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 states 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 states 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 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.[25][26][27][28]
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."[25][26][27][28] 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.'”[29] 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.[30]
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).[31] 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.[32] 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.[33]
In Norfolk & Western Railway Co. v. Ayers (2003), Kennedy authored 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.[34]
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.[35] In his first term on the court, Kennedy voted with Rehnquist 92 percent of the time—more than any other justice.[36]
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.[37] Toobin sees this consideration of foreign law as the biggest factor behind Kennedy's occasional breaking with his most conservative colleagues.[37] 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.[37] 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".[38]
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.[39]
According to legal reporter Jan Crawford Greenburg, Kennedy attracts the ire of conservatives when he does not vote with his more rightist colleagues.[40] According to legal analyst Jeffrey Toobin, conservatives view Kennedy's pro-gay-rights and pro-choice rulings as betrayals.[37] 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).[40]
A short 2008 law review article by retired lawyer Douglas M. Parker in the legal journal The Green Bag[41] charged that much of the criticism of Kennedy was based upon "pop psychology," rather than careful analysis of his opinions.
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's 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.”[42]
Kennedy is one of thirteen Catholic justices – of whom six sit on the Court as of the 2010–2011 term – out of 111 justices in total in the history of the Supreme Court.[43]
| Legal offices | ||
|---|---|---|
| Preceded by Charles Merrill |
Judge of the Court of Appeals for the Ninth Circuit 1975–1988 |
Succeeded by Pamela Rymer |
| Preceded by Lewis Powell |
Associate Justice of the Supreme Court of the United States 1988–present |
Incumbent |
| United States order of precedence | ||
| Preceded by Antonin Scalia as Associate Justice of the Supreme Court |
Order of Precedence of the United States as Associate Justice of the Supreme Court |
Succeeded by Clarence Thomas as Associate Justice of the Supreme Court |
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