Both whom and what he knew made Anthony McLeod Kennedy an apt candidate for high judicial office. The best man at his parents’ wedding was Roger Traynor, the groom’s law school classmate, who would become the Supreme Court of California’s greatest Chief Justice. As a boy in Sacramento, young Kennedy came to know the legal elite of California’s government, including Earl Warren, Governor and eventual Chief Justice of the United States. At Stanford, Kennedy was elected to Phi Beta Kappa, and between university and law school, he spent a year at the London School of Economics. His law degree from Harvard was awarded cum laude. After brief sojourns practicing in San Francisco and serving in the army, he returned to Sacramento and his father’s law practice. Soon afterward, he joined the faculty at McGeorge College of the Law where, on a parttime basis, he regularly taught constitutional law. Meanwhile, he had come to the attention of Ronald Reagan, and, when a vacancy occurred on the United States Court of Appeals for the Ninth Circuit, Reagan recommended him to President Ford.
Circuit Judge Kennedy was confirmed by the Senate in April of 1975. Only thirty-eight years old at the time, he became the youngest federal appellate judge in the country. He served on the court of appeals for more than twelve years and during that time wrote many influential opinions, including Chadha v. United States (1978), in which the court found unconstitutional a one-house congressional veto for administrative decisions. That decision was subsequently affirmed by the Supreme Court. In Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc. (1984), Kennedy articulated a theory, based on a person’s constitutional right to be heard by a lifetenured judge, for judicial review of Congressional assignment of claims to government tribunals other than courts. It would be adopted by the Supreme Court two years later in Commodity Futures Trading Commission v. Schor (1986). Dissenting in United States v. Harvey (1983), he advocated an exception to the exclusionary rule for evidence obtained by police unlawfully but in good faith. The Supreme Court made such an exception part of the law of the Fourth Amendment a year later in Massachusetts v. Sheppard (1984).
Kennedy was nominated for the Supreme Court on November 30, 1987, and confirmed by a unanimous Senate on February 3, 1988. He took his seat on the Court on February 18, 1988. He was nominated by President Reagan, as were Justices O’Connor and Scalia, but the three have hardly voted as a bloc. If Scalia’s record tends to prove that, once on the Supreme Court, justices tend to vote in important cases harmoniously with the political values of the President that nominated them, Kennedy’s record tends to prove the exception to that rule. After thirteen terms, his role in pivotal cases of constitutional rights has made him the Federal judiciary’s lightning rod for the dissatisfaction of conservative Republicans.
Kennedy’s independence of judgment might not have been a complete surprise to the White House. After all, he was only nominated for the seat opened by Justice Powell’s retirement after two earlier and presumably preferred nominees, Circuit Judges Bork and Ginsberg, failed to win the Senate’s advice and consent. Nevertheless, Kennedy came to Washington with a reputation for judicial restraint and a record that bespoke a preference for law and order. It did not take him long on the Supreme Court to act contrary to both. In the view of many, Kennedy has gone against type in cases arising in several constitutional contexts. Among the earliest of his disagreements with members of the Court with whom he was presumed to share ideology came in Texas v. Johnson (1989), where his vote was crucial to a decision that constitutional protection of political dissent extended even to burning the American flag.
In Planned Parenthood v. Casey (1992), a coalition of those opposed to abortion mounted a spirited attack on Roe v. Wade (1973), anticipating its overruling by a Supreme Court repopulated by Presidents openly in their camp. The ensuing judgment of the Court proved for social conservatives a victory Pyrrhic at best. Roe was upheld because Kennedy, along with O’Connor and Souter, formed a majority with their more liberal brethren. The three issued a joint opinion upholding the judgment in Roe, but proposing a less stringent test for the constitutionality of government restrictions on abortion. After Casey, legislatures have in theory greater latitude to curtail abortion services; restrictive regulations are now unconstitutional only if they impose on pregnant women an ‘‘undue burden.’’ But the decision was surely a bitter pill for abortion’s enemies. Although Kennedy (and his two co-authors) might be said in Casey to have left the constitutional right to an abortion less secure as a matter of law, they also denied to its opponents the sweeping victory of an explicit overruling and left any legislative curtailing of abortion access for judicial scrutiny only on a case-by-case basis.
Perhaps for social conservatives nothing makes Kennedy more the maverick than the positions he has taken in cases about homosexuality. While on the Ninth Circuit, Kennedy wrote in Beller v. Middendorf (1980) that the Constitution permits the Navy to make dismissal from the service a consequence of homosexual conduct. In hindsight, this case deserves less attention for its holding than for the qualification that came with it, because Kennedy took care to make clear that the question of whether homosexual conduct was constitutionally protected private conduct turned on the military setting in which the question was presented. In the Supreme Court, Kennedy declined to join Rehnquist, Scalia, and Thomas in upholding an amendment to Colorado’s constitution forbidding any action by state agencies or officials to protect homosexuals from discrimination or afford them special treatment as members of a disadvantaged minority. Instead, he wrote for the majority in Romer v. Evans (1996) that such an amendment violated the Fourteenth Amendment’s equal protection clause. Purporting to apply the tolerant test of constitutionality appropriate whenever no fundamental right is at stake and no constitutionally protected minority is disadvantaged, Kennedy’s opinion for the Court nevertheless held the amendment to a higher standard, signaling sympathy for the homosexuals marginalized by Colorado’s action. Seven years later, Justice Kennedy wrote for the majority in Lawrence v. Texas (2003) that the Supreme Court had misconstrued the claims of the homosexual defendant in Bowers v. Hardwick (1986) that his conviction for sodomy violated the Fourteenth Amendment and that, in light of Casey and Romer, Bowers had to be overruled. According to the Court in Lawrence, for homosexual adults sodomy is a liberty protected from government interference by the Fourteenth Amendment’s due process clause.
In the eyes of its critics, not the least of the faults to be found in Kennedy’s opinion in Lawrence is its proposition that what ought to be constitutionally protected as a fundamental human right can be ascertained by reference to values America ‘‘shares with a wider civilization.’’ Kennedy’s readiness to listen to the viewpoints of jurists and experts elsewhere appears also in his opinion for the Court in Roper v. Simmons (2005), in which it was held that the Eighth Amendment ruled out the death penalty for juvenile offenders. Kennedy’s was truly the ‘‘swing’’ vote. He had earlier been one of the bare majority in Stanford v. Kentucky (1989) that had held to the contrary.
If Kennedy has on several occasions disappointed those who saw him at the time of his Supreme Court confirmation as a champion of judicial restraint and law and order, he has not always disappointed them. His was the deciding vote in Bush v. Gore (2000) against a recount of the Florida ballots in the presidential election of 2000. For Kennedy, the First Amendment’s establishment clause does not dictate a wall between church and state. In his view, expressed first in County of Allegheny v. ACLU (1989) and later, for the Court, in Lamb’s Chapel v. Center Moriches Union Free School District (1993), government is free to endorse religion in general as long as it refrains from favoring any religion in particular and so long as government does not coerce participation. He has turned out to be no fan of affirmative action, joining the Court in City of Richmond v. J.A. Croson Co. (1989) in its ruling that the equal protection clause forbids a city from favoring minority vendors in the award of municipal contracts, and refusing in Gruttinger v. Bollinger (2003) and Gratz v. Bollinger (2003) to sanction either of the University of Michigan’s attempts to increase diversity through admissions programs favoring minority applicants.
His approach to issues of criminal procedure also defies easy labeling. He has played an important part in restricting the writ of habeas corpus, writing for the Court in McClesky v. Zant (1991) that the Constitution entitled a prisoner to more than one such review only when a subsequent claim of constitutional error could not have been part of the earlier petition, and he supplied the fifth vote in Murray v. Giarrantano (1989), in which the Court held that indigent deathrow prisoners were not entitled to the assistance of counsel for habeas corpus petitions to state courts. On the other hand, in a speech to the American Bar Association in 2003, Justice Kennedy called into question much of the contemporary American system of corrections. He questioned the sheer number of persons incarcerated in America, the disproportionate presence in that population of African Americans, as well as the cost of such a penal system and its inadequate funding. He questioned the lengthening of sentences that resulted from the federal sentencing guidelines and lamented the atrophying of the pardon power. He argued for renewed attention to the goal of rehabilitation, and he challenged the entire American bar to pursue broad reforms in sentencing and clemency.
In the eye of a beholder, the constitutional progress of Anthony Kennedy has been either a disappointing detour from judicial restraint or else a laudable search for the higher path of judicial decision making. That choice is still history’s.
JOHN PAUL JONES
References and Further Reading
Cases and Statutes Cited