Anthony Kennedy is a Supreme Court justice who was nominated by Ronald Reagan after Lewis Powell retired. Kennedy shared a deep background and association with Reagan, who turned to him after two prior nominations to a vacancy on the U.S. Supreme Court had not been confirmed.
Beginning with the replacement of Justice Sandra Day O'Connor with Justice Samuel Alito, Justice Kennedy became the key swing vote on the U.S. Supreme Court on several issues, including abortion, enemy combatants and environmental cases.
Justice 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.
- Establishment Clause
- partial birth abortion
- criminal procedure, such as Kyllo v. United States
- business law, such as Nevada Dep't of Human Resources v. Hibbs
But Justice Kennedy has voted with the liberal side of the Court on these issues:
- Roe v. Wade
- death penalty, such as Roper v. Simmons
- homosexual agenda
- parental rights
- rights of enemy combatants
- global warming
- use of foreign law to interpret the U.S. Constitution
Justice 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.
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
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 remains the swing vote on the Court.