Presidents and the Supreme Court: Anthony Kennedy
For thirty years, Justice Anthony Kennedy served as the "swing vote" on the United States Supreme court, a court that has been divided along ideological lines for much of that time. Kennedy was nominated to the court in 1987 by President Ronald Reagan, and sworn in on February 18, 1988. His retirement upsets the balance on the court, something seen as a positive by conservatives and a negative by liberals. It underscores the current state of polarized politics.
Anthony McLeod Kennedy was born in Sacramento, California. He graduated from Harvard Law School and then returned home to Sacramento to take over his father's legal practice. In 1975, President Gerald Ford appointed Kennedy to the United States Court of Appeals for the Ninth Circuit. Towards the end of the Reagan presidency, in November 1987, Regan was having difficulty in nominating a successor to fill the vacancy left by Associate Justice Lewis F. Powell Jr. Reagan nominated Kennedy, who was unanimously confirmed by the Senate in February 1988. Kennedy became the most senior Associate Justice of the Court following the death of Antonin Scalia in February 2016. He retired during the administration of President Donald Trump and was succeeded by Brett Kavanaugh.Kennedy authored the majority opinion in several important cases, including Citizens United v. FEC, Lawrence v. Texas, and Obergefell v. Hodges.
Kennedy was raised in an Irish Catholic family. His father, also named Anthony Kennedy, was active in Republican politics and as a boy, future Justice Kennedy met California Governor and later U.S. Chief Justice Earl Warren. Kennedy served as a page in the California State Senate as a youth and obtained a Bachelor of Arts in political science in 1958, after spending his senior year at the London School of Economics. He then attended Harvard Law School where he graduated with a Bachelor of Laws in 1961. In 1963, following his father's death, he took over his father's Sacramento practice, remaining there until 1975. From 1965 to 1988, he was a Professor of Constitutional Law at McGeorge School of Law, at the University of the Pacific. While a California law professor and attorney, he helped California Governor Ronald Reagan draft a state tax proposal.
On March 3, 1975, on Reagan's recommendation, President Gerald Ford nominated Kennedy to the seat on the United States Court of Appeals for the Ninth Circuit. Kennedy was unanimously confirmed by the U.S. Senate on March 20 and received his commission on March 24, 1975. On November 11, 1987, President Reagan nominated Kennedy to the Supreme Court, filling the vacancy left by Lewis F. Powell Jr.'s retirement. Reagan's first nominee, Robert Bork, was rejected by the Senate on October 23. His second choice was Douglas Ginsburg, who withdrew his name from consideration on November 7 after admitting to marijuana use. Kennedy was the first nominee to have his background investigated by the FBI, who found no skeletons in his closet. His confirmation hearing lasted three consecutive days, but when the Senate voted on Kennedy's nomination, he received bipartisan support. The Senate confirmed him on February 3, 1988, by a vote of 97 to 0. He was sworn in on February 18, 1988.
Although appointed by a Republican president, Kennedy did not demonstrate a consistent ideological bias. Kennedy and Sandra Day O'Connor were swing votes in many 5–4 and 6–3 decisions on the Rehnquist and Roberts courts. He generally riled for the state in Fourth Amendment cases involving searches for illegal drugs, and took a broad view of constitutional protection of speech under the First Amendment.
In 1992, Kennedy joined O'Connor's opinion in Planned Parenthood v. Casey (1992), which reaffirmed the Roe v. Wade decision recognizing the right to abortion under the Due Process Clause of the Fourteenth Amendment. The opinion attracted significant criticism from conservatives.
Kennedy's interpretation of liberty included 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 wrote the Court's opinion in Lawrence v. Texas, which invalidated criminal laws against homosexual sodomy on the basis of the Due Process Clause of the United States Constitution. However 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.
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." 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.
Kennedy sided with the Court's majority in Atkins v. Virginia and Roper v. Simmons, which held that the execution of the mentally ill and those under 18 at the time of the crime was unconstitutional. In 2008, Kennedy wrote the majority opinion in Kennedy v. Louisiana, which held that the 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 concluded that "the death penalty should not be expanded to instances where the victim's life was not taken."
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. 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.
On June 12, 2008, Kennedy wrote the 5–4 majority opinion in Boumediene v. Bush, a case which challenged the legality of the plaintiff'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.
Justice Kennedy's majority opinion in Citizens United found that the prohibition of all independent expenditures by corporations and unions violated the First Amendment's protection of free speech. He sided with the majority that held that "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." Kennedy also wrote 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.
Kennedy has joined with Court majorities in decisions favoring states' rights and invalidating federal and state affirmative action programs. He ruled with the majority 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.
On the Roberts Court, Kennedy often decided 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. 16 of these were decided along ideological lines, and Kennedy joined the conservative wing of the court 11 times and the liberal wing 5 times.
Kennedy 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.
On June 21, 2018, he informed President Trump of his retirement from the court. It led to the controversial nomination of Kennedy's successor, Brett Kavanaugh.
Anthony McLeod Kennedy was born in Sacramento, California. He graduated from Harvard Law School and then returned home to Sacramento to take over his father's legal practice. In 1975, President Gerald Ford appointed Kennedy to the United States Court of Appeals for the Ninth Circuit. Towards the end of the Reagan presidency, in November 1987, Regan was having difficulty in nominating a successor to fill the vacancy left by Associate Justice Lewis F. Powell Jr. Reagan nominated Kennedy, who was unanimously confirmed by the Senate in February 1988. Kennedy became the most senior Associate Justice of the Court following the death of Antonin Scalia in February 2016. He retired during the administration of President Donald Trump and was succeeded by Brett Kavanaugh.Kennedy authored the majority opinion in several important cases, including Citizens United v. FEC, Lawrence v. Texas, and Obergefell v. Hodges.
Kennedy was raised in an Irish Catholic family. His father, also named Anthony Kennedy, was active in Republican politics and as a boy, future Justice Kennedy met California Governor and later U.S. Chief Justice Earl Warren. Kennedy served as a page in the California State Senate as a youth and obtained a Bachelor of Arts in political science in 1958, after spending his senior year at the London School of Economics. He then attended Harvard Law School where he graduated with a Bachelor of Laws in 1961. In 1963, following his father's death, he took over his father's Sacramento practice, remaining there until 1975. From 1965 to 1988, he was a Professor of Constitutional Law at McGeorge School of Law, at the University of the Pacific. While a California law professor and attorney, he helped California Governor Ronald Reagan draft a state tax proposal.
On March 3, 1975, on Reagan's recommendation, President Gerald Ford nominated Kennedy to the seat on the United States Court of Appeals for the Ninth Circuit. Kennedy was unanimously confirmed by the U.S. Senate on March 20 and received his commission on March 24, 1975. On November 11, 1987, President Reagan nominated Kennedy to the Supreme Court, filling the vacancy left by Lewis F. Powell Jr.'s retirement. Reagan's first nominee, Robert Bork, was rejected by the Senate on October 23. His second choice was Douglas Ginsburg, who withdrew his name from consideration on November 7 after admitting to marijuana use. Kennedy was the first nominee to have his background investigated by the FBI, who found no skeletons in his closet. His confirmation hearing lasted three consecutive days, but when the Senate voted on Kennedy's nomination, he received bipartisan support. The Senate confirmed him on February 3, 1988, by a vote of 97 to 0. He was sworn in on February 18, 1988.
Although appointed by a Republican president, Kennedy did not demonstrate a consistent ideological bias. Kennedy and Sandra Day O'Connor were swing votes in many 5–4 and 6–3 decisions on the Rehnquist and Roberts courts. He generally riled for the state in Fourth Amendment cases involving searches for illegal drugs, and took a broad view of constitutional protection of speech under the First Amendment.
In 1992, Kennedy joined O'Connor's opinion in Planned Parenthood v. Casey (1992), which reaffirmed the Roe v. Wade decision recognizing the right to abortion under the Due Process Clause of the Fourteenth Amendment. The opinion attracted significant criticism from conservatives.
Kennedy's interpretation of liberty included 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 wrote the Court's opinion in Lawrence v. Texas, which invalidated criminal laws against homosexual sodomy on the basis of the Due Process Clause of the United States Constitution. However 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.
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." 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.
Kennedy sided with the Court's majority in Atkins v. Virginia and Roper v. Simmons, which held that the execution of the mentally ill and those under 18 at the time of the crime was unconstitutional. In 2008, Kennedy wrote the majority opinion in Kennedy v. Louisiana, which held that the 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 concluded that "the death penalty should not be expanded to instances where the victim's life was not taken."
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. 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.
On June 12, 2008, Kennedy wrote the 5–4 majority opinion in Boumediene v. Bush, a case which challenged the legality of the plaintiff'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.
Justice Kennedy's majority opinion in Citizens United found that the prohibition of all independent expenditures by corporations and unions violated the First Amendment's protection of free speech. He sided with the majority that held that "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." Kennedy also wrote 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.
Kennedy has joined with Court majorities in decisions favoring states' rights and invalidating federal and state affirmative action programs. He ruled with the majority 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.
On the Roberts Court, Kennedy often decided 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. 16 of these were decided along ideological lines, and Kennedy joined the conservative wing of the court 11 times and the liberal wing 5 times.
Kennedy 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.
On June 21, 2018, he informed President Trump of his retirement from the court. It led to the controversial nomination of Kennedy's successor, Brett Kavanaugh.