Anthony Kennedy
Anthony McLeod Kennedy is an American attorney 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 considered 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 Stanford University and Harvard Law School. Kennedy became a U.S. federal judge in 1975 when President Gerald Ford appointed him to the United States Court of Appeals for the Ninth Circuit. In November 1987, after two failed 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. Following the death of Antonin Scalia in February 2016, Kennedy became the senior associate justice of the court. Kennedy retired during the presidency of Donald Trump and was succeeded by his former law clerk, Brett Kavanaugh. Following O'Connor's death in 2023, Kennedy is the oldest living former Supreme Court justice.
Kennedy authored the majority opinion in several important cases—including Boumediene v. Bush, Citizens United v. FEC, and four major gay rights cases: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges. He also co-authored the controlling opinion in Planned Parenthood v. Casey along with Justices Sandra Day O’Connor and David Souter.
Early life and education
Kennedy was born and raised in a Catholic family in Sacramento, California. His ancestry was mainly Irish, with some Scottish, German, and English ancestry as well. He was the son of Anthony J. Kennedy, an attorney with a reputation for influence in the California State Legislature, and Gladys, 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 future Chief Justice of the United States Earl Warren. As a young man, Kennedy served as a page in the California State Senate. 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 in constitutional law. After spending his senior year at the London School of Economics, Kennedy graduated Phi Beta Kappa from Stanford in 1958 with a Bachelor of Arts degree in political science. Kennedy then attended Harvard Law School, graduating in 1961 with a Bachelor of Laws, cum laude.
Early career
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.During Kennedy's time as a California law professor and attorney, he helped California Governor Ronald Reagan draft a state tax proposal.
Kennedy served as a private first class in the California Army National Guard from 1961 to 1962 during the Cold War. He was on 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 from 1979 to 1987, and the Committee on Pacific Territories from 1979 to 1990, which he chaired from 1982 to 1990.
U.S. Court of Appeals for the Ninth Circuit
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.Supreme Court of the United States
Nomination and confirmation
In July 1987, President Ronald Reagan nominated Robert Bork to the Supreme Court seat vacated by Lewis F. Powell Jr., who had announced his retirement in late June. However, he was rejected 42–58 by the Senate on October 23. The president's next nominee, Douglas Ginsburg, withdrew his name from consideration on November 7 after admitting to marijuana use, and Senate Judiciary Committee member Patrick Leahy said that if Reagan's next nominee was unacceptable to Senate Democrats, they would refuse hearings for any candidate until after the 1988 presidential election.On November 11, 1987, Reagan nominated Anthony Kennedy to fill Powell's seat. Kennedy was then subjected to an unprecedentedly thorough investigation of his background, which did not uncover any information that would hinder his nomination.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 by Jeffrey Levi, executive director of the National Gay & Lesbian Taskforce, at his confirmation hearing:
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; he is the most recent Supreme Court justice to be confirmed by a unanimous vote. 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.
Tenure and analysis
Although appointed by a Republican president, Kennedy's decisions did not consistently align with a single ideological bloc and often varied depending on the case. Vanity Fair quoted several former Supreme Court clerks as indicating that they believe Kennedy was often swayed by the opinions of his clerks, including his ruling on Planned Parenthood v. Casey. One clerk stated that "the premise is that he can't think by himself, and that he can be manipulated by someone in his second year of law school". This notion also led the Federalist Society to target Kennedy with more conservative clerks, believing this would make Kennedy more conservative. Two of his former clerks, Neil Gorsuch and Brett Kavanaugh, eventually became Supreme Court justices. 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 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. Before becoming the median justice on the court in 2006, Kennedy sided with conservatives during close rulings 75 percent of the time. However, Kennedy was also known for siding with the court's liberal justices on high-profile social issues like same-sex marriage and abortion. Kennedy was known as a swing vote on the court, and this reputation became more pronounced after the 2006 retirement of Justice Sandra Day O'Connor. Kennedy, who was slightly more conservative than former Justice O'Connor was on issues of race, religion, and abortion, intensely disliked being labeled a "swing vote" in public. However, interviews with former clerks indicate that, behind the scenes, he may have appeared undecided on certain cases despite having already formed an opinion.
On the Roberts Court, Kennedy often decided the outcome of cases. In the 2008–2009 term, he was in the majority 92 percent of the time. In the 23 decisions in which the justices split 5–4, 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, five. In the 2010–2011 term, 16 cases were decided by a 5–4 vote; Kennedy joined the majority in 14 of the decisions.
Following the death of Antonin Scalia in February 2016, Kennedy became the Senior Associate Justice of the court and the last appointed by President Reagan. During his last few terms on the court, the justice became critical of administrative law.
Kennedy retired from the Supreme Court and made the transition to senior status effective July 31, 2018.
He has the distinction of being the only Supreme Court Justice to have two former clerks of his be appointed to the Supreme Court, Neil Gorsuch and Brett Kavanaugh.
Conservative criticism
According to legal reporter Jan Crawford, Kennedy attracted the ire of conservatives when he did not vote with his more conservative colleagues. In 2005, the U.S. House Majority Leader at the time, 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 viewed Kennedy's pro-gay-rights and pro-choice rulings as betrayals. According to Crawford, the "bitter" quality of some movement conservatives' views on Kennedy stems from his eventual rethinking of positions on abortion, religion, and the death penalty.A short 2008 law review article by retired lawyer Douglas M. Parker in 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."