Anthony McLeod Kennedy (born July 23, 1936) has been an Associate Justice of the U.S. Supreme Court since 1988. Appointed by Republican President Ronald Reagan, he acts as the Court's swing vote on social issues in some cases and has consequently held special prominence in some politically-charged 5–4 decisions.
He received his B.A. in Political Science from Stanford University in 1958. He also spent part of his undergraduate time at the London School of Economics before earning an LL.B from Harvard Law School in 1961.
Kennedy was in private practice in San Francisco, California, from 1961-1963, then took over his father's practice in Sacramento, California, from 1963-1975. From 1965 to 1988, he was a Professor of Constitutional Law at University of the Pacific, McGeorge School of Law 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.
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. He was appointed to the United States Court of Appeals for the Ninth Circuit by President Gerald Ford in 1975.
While vetting Kennedy for potential nomination, some of Reagan's Justice Department lawyers said Kennedy was too eager to put courts in disputes many conservatives would rather leave to legislatures, and to identify rights not expressly written in the Constitution. Kennedy's stance in favor of privacy rights drew criticism; Kennedy cited Roe v. Wade and other privacy right cases favorably, which one lawyer called "really very distressing".
In another of the opinions Kennedy wrote before coming to the Supreme Court, he criticized (in dissent) the police for bribing a child into showing them where the child's mother hid her heroin; Kennedy wrote that "indifference to personal liberty is but the precursor of the state's hostility to it. The Reagan lawyers also criticized Kennedy for citing a report from Amnesty International to bolster his views in that case.
Another lawyer pointed out "Generally, [Kennedy] seems to favor the judiciary in any contest between the judiciary and another branch.
Kennedy endorsed Griswold as well as the right to privacy, calling it "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.' This gave Kennedy more bipartisan support than Bork and Ginsburg had had, and the Senate confirmed him by a vote of 97 to 0.
Kennedy, or Sandra Day O'Connor, or both of them, have served as one of two swing voters in many 5-4 decisions during the Rehnquist and Roberts Courts. On issues of religion, he holds to a far less separationist reading of the Establishment Clause than did Sandra Day O'Connor, favoring a "Coercion Test" that he detailed in County of Allegheny v. ACLU.
Kennedy supports a broad reading of the "liberty" 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 opposes affirmative action as promoting stereotypes of minorities. 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.
In 1992, he joined Justice Sandra Day O'Connor's controlling plurality opinion in the case of Planned Parenthood v. Casey (1992), which re-affirmed in principle (though not in 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 the anti-Roe presidential administrations of Ronald Reagan and George H.W. Bush, ignited a firestorm of criticism from conservatives. Kennedy had stated at least as early as 1989 that he would not overrule Roe in order to uphold precedent; he had also taught Roe as a professor for fifteen years.
In later abortion decisions, it became apparent that Kennedy thought Casey had narrowed the Roe decision 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 the Casey holding meant. For example, Kennedy dissented in the 2000 decision of Stenberg v. Carhart, which struck down laws criminalizing partial-birth abortion.
After the judicial appointments of President George W. Bush, Justice 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 the principles of Casey because it did not impose an "undue burden." The decision did not expressly overrule Stenberg, although many commentators see it having that effect.
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." Thus, this ruling is expected to effectively limit the use of the death penalty for a crime against an individual not involving murder. However, it is important to note that this decision is unlikely to impact the use of the death penalty in relation to military justice or for crimes against the state such as terrorism, espionage, or treason.
Conservative commentator Matthew Continetti called the 2008 Kennedy v. Louisiana ruling, which held that the death penalty could not be applied to lesser crimes than homicide, "appalling," writing, "The intellectual backflips Justice Kennedy performed in his opinion would be impressive if they weren't so offensive to constitutionalist sensibilities.
The Court also concluded that the detainees are not required to exhaust review procedures in the court of appeals before pursuing habeas corpus actions in the district court. In the majority ruling Justice Kennedy called the Combatant Status Review Tribunals "inadequate." 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.'” 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.
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 ceased continuing recounts in the 2000 presidential election and ended the legal challenge to the election of President George W. 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 in which it is legal. 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.
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. Toobin sees this consideration of foreign law as the biggest factor behind Kennedy's occasional breaking with his most conservative colleagues. 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. 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."