|Associate Justice of the U.S. Supreme Court|
From: February 18, 1988 – July 31, 2018
|Spouse(s)||Mary Davis Kennedy|
Anthony McLeod Kennedy (born July 23, 1936) was the Supreme Court justice who was nominated by Ronald Reagan after Lewis Powell retired. Kennedy was a Californian like Reagan, who turned to him after two prior nominations to a vacancy on the U.S. Supreme Court had not been confirmed.
On June 27, 2016, Kennedy cast the decisive vote in favor of abortion clinics, thereby giving pro-aborts everything they wanted to overturn pro-life provisions, in the case of Whole Woman's Health v. Hellerstedt.
Before siding completely with abortion, Kennedy had previously cast the deciding vote in support of a narrowed affirmance of abortion rights in 1992, in Planned Parenthood v. Casey. Between then and 2015, Kennedy's only votes for abortion were in denying certiorari on pro-life petitions. At oral argument in the Burwell v. Hobby Lobby Stores case on March 25, Justice Kennedy was critical of the possibility of the government requiring corporations to fund abortion. Uncertain until 2016 about whether Kennedy would rule for them, pro-aborts typically did not appeal their court losses to the Supreme Court, perhaps fearing that Justice Kennedy will cast the deciding vote against them and thereby establish a pro-life precedent nationwide. With Kennedy on their side now, abortion clinics are expected to seek to overturn numerous pro-life laws, beginning with a lawsuit in Louisiana merely a few days after the Supreme Court ruled.
Justice Kennedy authored all four of the Supreme Court decisions which have advanced the homosexual agenda. He was also the decisive vote and wrote the 5-4 opinion in favor of direct corporate spending on ads in campaigns, in Citizens United v. FEC, 130 S. Ct. 876 (2010).
On July 31, 2018, Kennedy retired and was soon replaced by Brett Kavanaugh.
Beginning with the replacement of Justice Sandra Day O'Connor with Justice Samuel Alito, Kennedy became the key swing vote on the U.S. Supreme Court on several issues, including abortion, enemy combatants and environmental cases.
Kennedy is willing to overrule precedents and deemphasize stare decisis. He has written court opinions that have overruled both liberal and conservative precedents, in areas ranging from the Eighth Amendment (death penalty) to homosexual rights to antitrust law.
- campaign speech, such as Citizens United v. FEC
- Establishment Clause, such as Van Orden v. Perry
- partial birth abortion, such as Stenberg v. Carhart and Gonzales v. Carhart
- federalism, such as United States v. Lopez
- criminal procedure, such as Kyllo v. United States and DA's Office for the Third Judicial Dist. v. Osborne
- business law, such as Nevada Dep't of Human Resources v. Hibbs
- gun control, such as D.C. v. Heller
- healthcare, such as National Federation of Independent Business v. Sebelius
- voting rights, such as Shelby County v. Holder
But Kennedy has voted with the liberal side of the Court on these issues:
- Roe v. Wade, such as Planned Parenthood v. Casey
- death penalty, such as Roper v. Simmons
- homosexual agenda, such as Lawrence v. Texas and Obergefell v. Hodges
- parental rights
- rights of enemy combatants
- global warming
- use of foreign law to interpret the U.S. Constitution
Separation of Powers
Kennedy tends to support interdependence and reciprocity between the branches of government rather than the strict separation of powers advocated by Justice Antonin Scalia. For example, Justice Kennedy dissented from the Blakely v. Washington:
- The Court, in my respectful submission, disregards the fundamental principle under our constitutional system that different branches of government "converse with each other on matters of vital common interest." Mistretta v. United States, 488 U.S. 361, 408 (1989). As the Court in Mistretta explained, the Constitution establishes a system of government that presupposes, not just "'autonomy'" and "'separateness,'" but also "'interdependence'" and "'reciprocity.'" Id., at 381, 102 L. Ed. 2d 714, 109 S. Ct. 647 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 96 L. Ed. 1153, 72 S. Ct. 863 (1952) (Jackson, J., concurring)). Constant, constructive discourse between our courts and our legislatures is an integral and admirable part of the constitutional design. Case-by-case judicial determinations often yield intelligible patterns that can be refined by legislatures and codified into statutes or rules as general standards. As these legislative enactments are followed by incremental judicial interpretation, the legislatures may respond again, and the cycle repeats. This recurring dialogue, an essential source for the elaboration and the evolution of the law, is basic constitutional theory in action.
- Sentencing guidelines are a prime example of this collaborative process. Dissatisfied with the wide disparity in sentencing, participants in the criminal justice system, including judges, pressed for legislative reforms. In response, legislators drew from these participants' shared experiences and enacted measures to correct the problems, which, as Justice O'Connor explains, could sometimes rise to the level of a constitutional injury. As Mistretta recognized, this interchange among different actors in the constitutional scheme is consistent with the Constitution's structural protections.
- To be sure, this case concerns the work of a state legislature, and not of Congress. If anything, however, this distinction counsels even greater judicial caution. Unlike Mistretta, the case here implicates not just the collective wisdom of legislators on the other side of the continuing dialogue over fair sentencing, but also the interest of the States to serve as laboratories for innovation and experiment. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 76 L. Ed. 747, 52 S. Ct. 371 (1932) (Brandeis, J., dissenting). With no apparent sense of irony that the effect of today's decision is the destruction of a sentencing scheme devised by democratically elected legislators, the majority shuts down alternative, nonjudicial, sources of ideas and experience. It does so under a faintly disguised distrust of judges and their purported usurpation of the jury's function in criminal trials. It tells not only trial judges who have spent years studying the problem but also legislators who have devoted valuable time and resources "calling upon the accumulated wisdom and experience of the Judicial Branch . . . on a matter uniquely within the ken of judges," Mistretta, supra, at 412, 102 L. Ed. 2d 714, 109 S. Ct. 647, that their efforts and judgments were all for naught. Numerous States that have enacted sentencing guidelines similar to the one in Washington State are now commanded to scrap everything and start over.
Sweet Mystery of Life
For a more detailed treatment, see Planned Parenthood v. Casey.
In Planned Parenthood v. Casey, Kennedy wrote the following passage: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Justice Scalia disparagingly termed this the "sweet-mystery-of-life" passage, which he did not believe to be a part of a stable or rigorous jurisprudence.
Anthony McLeod Kennedy was born on July 22, 1936 in Sacramento California. The second of three children, Kennedy grew up in the quiet Sacramento community that reflected the rural Central California region.
Kennedy's father, Anthony J. Kennedy, worked as a lawyer and lobbyist for various businesses. The elder Kennedy, a well-established lawyer had a reputation for influence in the California legislature.
His mother, Gladys McLeod, participated in many Sacramento civic activities.
Kennedy attended a local Sacramento high school and Stanford University. He spent a year of his undergraduate studies at the London School of Economics and earned his A.B. and a Phi Beta Kappa key in 1958. After Stanford, Kennedy enrolled in Harvard Law School where he graduated cum laude. After law school Kennedy returned to California and worked as an associate for a law firm in San Francisco. His father died in 1963 and Kennedy returned to Sacramento to take over his father's practice. Also in 1963 Kennedy wed Mary Davis, with whom he had three children.
Early Years as a Lawyer
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 a member of the California Army National Guard in 1961, the board of the Federal Judicial Center from 1987–1988, and 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.
Although he lacked vast experience as a lawyer, many of his father's important clients stayed with him out of respect for the elder Kennedy. His clients soon discovered the young lawyer had just as much, if not more, legal skills than his father.
Kennedy had a talent for socializing and soon made many friends among the influential Californian politicians. Kennedy also donated large sums of money on behalf of himself and his clients to various political officials in the state.
Connection with President Ronald Reagan
Through his work as a lobbyist, Kennedy befriended Ed Meese who was a California District Attorney. The two, sharing similarities in age and background, became close friends. Meese left to work for then-Governor Reagan in 1966 and Kennedy continued his work as an attorney and lobbyist.
The two men did not lose touch with each other, however, and Kennedy continued to help Meese and Reagan in small capacities. Kennedy also taught constitutional law for a brief period during this time at the McGeorge School of Law of the University of the Pacific. In 1973, Meese recruited Kennedy to help Reagan draft Proposition One, a ballot initiative to limit the state's spending. He campaigned throughout the state to push the passage of the proposal and his efforts won him Reagan's favor.
The Ninth Circuit
Kennedy's loyalty was rewarded when Reagan recommended him to President Gerald Ford when a vacancy in the U.S. Court of Appeals for the Ninth Circuit opened. Kennedy joined the U.S. Court of Appeals in 1975 at age 38. Kennedy soon became the head of the court's conservative minority as President Carter expanded and flooded the Ninth Circuit Court with liberal judges. In the turbulent and often divided Ninth Circuit Court of that time, Kennedy often held majorities with few dissents. His narrow case-by-case approach and his refusal to resort to sweeping conclusions and rhetoric won him the support of many colleagues. Even his opponents admired Kennedy's well-crafted and thoughtful opinions.
"Sometimes it's better to bet on a horse to show."
When Justice Lewis Powell retired in 1987, Kennedy appeared on a short list of possibilities for the President's nomination, but Reagan nominated Robert Bork, but the feisty, conservative Bork met with fierce political opposition from liberals in the Senate and ultimately failed to win confirmation. Reagan nominated Douglas Ginsburg, a judge from the U.S. Court of Appeals in the District of Columbia Circuit, who subsequently withdrew. Reagan, on the advice of Meese, finally turned to Kennedy to fill the vacancy on the Supreme Court. Kennedy's nomination, unlike Reagan's two previous picks, encountered little resistance. After the tumultuous events surrounding Bork and Ginsburg, Kennedy's low key nomination appeared calming and even liberals thought of him as fair-minded and pragmatic. The Senate unanimously confirmed Kennedy and he was sworn into office on February 8, 1988.
Since he had experience as a federal judge, Justice Kennedy made an easy transition to the U.S. Supreme Court. He has voted consistently with his past record on many issues, but disappointed conservatives by providing a fifth vote to sustain Roe v. Wade in 1992. On several key issues Justice Kennedy remained the swing vote on the Court.
- The three decisions are Romer, Lawrence, Windsor, and Obergefell.
- In the 2006 Term ending June 2007, Kennedy had ruled with environmentalists in granting EPA authority to regulate greenhouse gases, but he had ruled against them in narrowing the EPA's obligations under the Endangered Species Act (ESA).
- Kennedy's praise of federalism and dual sovereignty is often quoted from his concurrence in United States v. Lopez, 514 U.S. 549 (1995) ("federalism was the unique contribution of the Framers to political science and political theory. Though on the surface the idea may seem counter-intuitive, it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one")
- 542 U.S. at 326-28 (Kennedy, J., dissenting).
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