Anthony Kennedy

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.[9] However, he was rejected 42–58 by the Senate on October 23.[10] The president's next nominee, Douglas Ginsburg,[11][12] withdrew his name from consideration on November 7 after admitting to marijuana use,[13] and Senate Judiciary Committee member Patrick Leahy said that if Reagan's next nominee was unacceptable to Senate Democrats,[lower-alpha 1] they would refuse hearings for any candidate until after the 1988 presidential election.[15]

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,[16] 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."[17] 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:

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.[18]

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."[19] 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.'"[20][21]

His hearings before the Senate Judiciary Committee began on December 14,[22][23] and lasted just three consecutive days.[24] 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".[25] The U.S. Senate confirmed him on February 3, 1988, by a vote of 97 to 0.[21] Absent from the vote were three Democrats: Paul Simon and Al Gore were campaigning and Joe Biden was ill.[26] Attorney General Edwin Meese presented Kennedy's commission to the court in a swearing-in ceremony on February 18, 1988.[27]

Although appointed by a Republican president, Kennedy was not easily pigeonholed ideologically; he had a reputation for looking at cases individually instead of deciding them on the basis of a rigid ideology.[3] 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.[28] One clerk derisively 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",[29] although other legal scholars have disagreed.[30][31]

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.[32] In his first term on the Court, Kennedy voted with Rehnquist 92 percent of the time—more than any other justice.[33] Before becoming the median justice on the court in 2006, Kennedy sided with conservatives during close rulings 75 percent of the time.[34] However, Kennedy was also known for siding with the court's liberal justices on high-profile social issues like same-sex marriage and abortion.[35] Kennedy was known as a swing vote on the court,[36][37][38][39] and this reputation became more pronounced after the 2005 retirement of Justice Sandra Day O'Connor (who had previously been known as the court's primary swing vote).[40] 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.[41] However, interviews with former clerks indicate that, behind the scenes, he relished his role as the deciding vote, to the point that some of them expressed a belief that he would pretend to waver on votes when he had, in fact, already made up his mind.[28]

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-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, five.[42] In the 2010–2011 term, 16 cases were decided by a 5–4 vote; Kennedy joined the majority in 14 of the decisions.[36]

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; he remained the Senior Associate Justice until his retirement.[43] Kennedy retired from the Supreme Court and made the transition to senior status effective July 31, 2018.[44]

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.

According to legal reporter Jan Crawford, Kennedy attracted the ire of conservatives when he did not vote with his more conservative colleagues.[45] In 2005, Tom DeLay criticized Kennedy for his reliance on international law and for conducting his own Internet research, calling him a judicial activist.[46] According to legal analyst Jeffrey Toobin, some conservatives viewed Kennedy's pro-gay-rights and pro-choice rulings as betrayals.[47] 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 (which Kennedy believes cannot be constitutionally applied to juveniles or intellectually disabled people).[45]

A short 2008 law review article by retired lawyer Douglas M. Parker in The Green Bag[48] 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."[49]

According to The New Yorker staff 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.[47] Toobin sees this consideration of foreign law as the biggest factor behind Kennedy's occasional breaking with his most conservative colleagues.[47] 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.[47]

Defending his use of international law, in 2005 Kennedy told 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."[50]

A 2008 profile of Kennedy in the Los Angeles Times 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 [sic]."[51]

In Hodgson v. Minnesota, 497 U.S. 417 (1990), Kennedy voted to uphold a restriction on abortion for minors that required both parents to be notified about the procedure.

Kennedy 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.[52] According to Court insiders, Kennedy had reportedly considered overturning Roe, but in the end decided to uphold restrictions while affirming the Roe precedent.[53]

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.[54]

After the judicial appointments made by President George W. Bush, Kennedy again became the needed fifth vote to strike down abortion restrictions. Since Kennedy's conception of abortion rights was narrower than O'Connor's, the court became slightly more supportive of abortion restrictions after 2006. Kennedy wrote the majority opinion in Gonzales v. Carhart, 550 U.S. 124 (2007), which held that a federal law criminalizing partial-birth abortion did not violate Casey because it did not impose an "undue burden" upon the exercise of abortion rights. The decision did not expressly overrule Stenberg, although many commentators saw it as having that effect.[55][56]

O'Hare Truck Service, Inc. was a towing company employed under contract by the City of Northlake in northern Illinois. Northlake removed O'Hare from its list on towing companies because the company's owner did not support Northlake's mayoral candidate in his reelection campaign: instead, the owner supported an opposition candidate. The Supreme Court held, in a majority 7:2 opinion written by Kennedy, (O'Hare Truck Service, Inc. v. City of Northlake) that independent contractors such as O'Hare are entitled to the same First Amendment protections as those afforded to government employees. Accordingly, Northlake could not base the towing company's employment on its political affiliations or beliefs unless the city could demonstrate that their political affiliations "had a reasonable and appreciable effect on its job performance". The Court held that Northlake neither attempted nor would it have been able to make such a demonstration. Therefore, Northlake's removal of O'Hare Truck Service from its employment list was unconstitutional.[57]

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 that "there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, 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 be compared to murder in their 'severity and irrevocability.'"[58] 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."[59]

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".

Kennedy's concept of liberty has included protections for sexual orientation. While Kennedy was an appeals-court judge, he wrote a decision in Beller v. Middendorf (9th Cir. 1980) that noted that some homosexual behavior may be constitutionally protected — yet upheld the military's policy of discharging service members on the basis of homosexuality.[60] He later wrote the Supreme Court's opinion in Romer v. Evans (1996), invalidating a provision in the Colorado Constitution excluding homosexuals from any state or local anti-discrimination protections. He wrote the Court's opinion in Lawrence v. Texas (2003), 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 Bowers v. Hardwick (1986). In both cases, he sided with the more liberal members of the Court. He wrote that the Court had misread the historical record regarding laws criminalizing homosexual relations in Bowers, stating that further research showed that American anti-sodomy laws had historically been directed at "nonprocreative sexual activity more generally," rather than specifically at homosexual acts. Combined with the fact that such laws had often gone unenforced, the Court saw this as constituting a tradition of avoiding interference with private sexual activity between consenting adults. He also said that the reasoning behind Bowers was not widely accepted in American law (pointing, for example, to the Model Penal Code's recommendations starting in 1955) and that it had been rejected by most other developed Western countries (as in the Wolfenden Report of 1957 and a 1981 decision of the European Court of Human Rights in Case 7525/76, Dudgeon v United Kingdom). As a result, Kennedy stated that there was a jurisprudential basis for thinking that "an integral part of human freedom" is allowing consenting adults to choose to privately engage in sexual activity.[61][62]

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.[63]

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 Christian Legal Society v. Martinez (2010), 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 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."[64]

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.[65][66] The closing paragraph of Kennedy's ruling has been used by many couples in their marriage vows:[67]

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.

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. 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.[68]

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 justices 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.[69][70][71][72]

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".[69][70][71][72] 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.'"[73] The decision struck down section seven of the MCA but left intact the Detainee Treatment Act. In a concurring opinion, Justice Souter stressed the fact that the prisoners involved had been imprisoned for as many as six years.[74]

On issues of religion, Kennedy held to a less separationist reading of the Establishment Clause than did his colleague, Justice Sandra Day O'Connor, favoring a "Coercion Test" that he detailed in County of Allegheny v. ACLU.[75] Kennedy authored the majority opinion in Town of Greece v. Galloway, 572 U.S. 565 (2014), concluding, "The town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition, and does not coerce participation by nonadherents."[76]

Justice Kennedy's majority opinion[77] 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."[78]

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.[79] The court overruled Austin v. Michigan Chamber of Commerce (1990), 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 v. FEC (2003) 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).[80]

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."[81] 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."[82]

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).[83] In his concurrence, Kennedy wrote, "It is poignant but fundamental that the flag protects those who hold it in contempt." He took a very broad view of constitutional protection for speech under the First Amendment, invalidating a congressional law prohibiting "virtual" child pornography in Ashcroft v. ACLU (2002).[84]

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. Although the decision was published without an author, Kennedy wrote the decision.[28] Behind the scenes, colleagues criticized his professionalism in this case, feeling that he inflated the numbers of his majority opinion by deciding, without consulting the dissenting justices, to implicate some of the dissenters as having joined his opinion in part.[28]

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.[85] 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.[86]

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.[87]

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.[88]

A December 2011 article in the Huffington Post noted that Kennedy in Melendez-Diaz v. Massachusetts (2009) and Bullcoming v. New Mexico (2011) 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 dissents, 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.[89]