Anthony Kennedy

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For other people of the same name, see Anthony Kennedy (disambiguation).

Justice Anthony McLeod Kennedy (born July 23, 1936) has been an Associate Justice of the U.S. Supreme Court since 1988.

Born in Sacramento, California, Kennedy, a devout Roman Catholic, married Mary Davis, with whom he has three children. He has no relation to the famous Kennedy family of American politics.

He received his B.A. in Political Science from Stanford University, another B.A. from the London School of Economics and an LL.B. from Harvard Law School. He was in private practice in San Francisco, California from 1961-1963, as well as in Sacramento, California from 1963-1975. From 1965 to 1988, he was a Professor of Constitutional Law at the McGeorge School of Law, University of the Pacific.

He 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.

In 1987, Associate Justice Lewis Powell retired. President Ronald Reagan first nominated Robert Bork to replace him. Bork was viewed as too conservative by the Democratic Senate, and he was not confirmed. Reagan then nominated Douglas H. Ginsburg, but Ginsburg withdrew his name amid reports of substantive prior marijuana use. Finally, Reagan nominated Kennedy, and after being confirmed 97-0 by the Senate he took his seat February 18, 1988.

Anthony Kennedy has been a moderate swing vote on the bench, often siding with liberals to take a broad reading of individual rights under the controversial doctrine of substantive due process. Justice Kennedy has represented the deciding vote on many constitutional issues with Justice Sandra Day O'Connor.

Kennedy's views on issues are fairly consistent. He 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. 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 2004's Ashcroft v. ACLU.

In 1992, Kennedy joined O'Connor and David Souter to form the troika who delivered the 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 (Kennedy initially voted to uphold the restrictions on abortion at issue but switched his vote during the consideration of Casey). The plurality opinion, signed jointly by three justices appointed by anti-Roe presidents Ronald Reagan and George H.W. Bush, ignited a firestorm of criticism from conservatives. Kennedy, however, dissented in 2000's Stenberg v. Carhart, which struck down laws criminalizing partial-birth abortion.

Kennedy has taken the leading role in expanding constitutional protection to homosexuals. He wrote the Court's opinion in Romer v. Evans (1996) invalidating a provision in the Colorado Constitution denying homosexuals the right to bring local discrimination claims. Kennedy's opinion employed lofty rhetoric as well as controversial constitutional arguments in defense of gay rights. In 2003, he authored the court's opinion Lawrence v. Texas which invalidated criminal prohibitions against homosexual sodomy under the United States Constitution (overturning the Court's previous contrary ruling in 1986's Bowers v. Hardwick) in an opinion filled with passionate rhetoric. In both cases, he sided with the more liberal members of the Court to form a narrow majority for his views. Lawrence also controversially referenced international law in justifying its result.

Kennedy has also taken a liberal approach to issues involving the death penalty. In 2002, he joined a 6-3 opinion (Atkins v. Virginia) declaring the execution of the mentally retarded unconstitutional. He also wrote the opinion of the court in Roper v. Simmons (2005) invalidating the execution of felons who were under 18 at time of the crime. His opinion made extensive reference to international law, drawing the ire of conservatives. A month later, former House Majority Leader Tom DeLay called Kennedy's work "incredibly outrageous", but stopped short of calling for his impeachment.

On the other hand, Kennedy has joined with Court majorities in decisions favoring states' rights and capital punishment and invalidating federal and state affirmative action programs. He also ruled with the majorities in the 2000 Bush v. Gore case that ceased recounts in the 2000 presidential election and ensured the victory of President George W. Bush.

In the recent Gonzales v. Raich case, he joined the liberal members of the court in permitting the federal government to prohibit the use of medical marijuana, even in states in which it is legal, thus invalidating a California law that made the use of medical marijuana legal. Several weeks later, in Kelo v. New London (2005), he joined the four more liberal Justices in supporting the local government's right to take private property for private economic development through eminent domain.

Kennedy has been active off of the bench as well, calling for reform of overcrowded American prisons in a speech before the American Bar Association. He spends his summers in Salzburg, Austria, where he teaches international and American law at the University of Salzburg and often attends the large yearly international judges conference held there. Defending his use of international law, Kennedy told the Sept. 12 issue of the New Yorker, "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.”

External links

• Supreme court official bio (PDF)
• http://www.newyorker.com/fact/content/articles/050912fa_fact New Yorker, "Swing Shift: How Anthony Kennedy’s passion for foreign law could change the Supreme Court." by Jeffrey Toobin]