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Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. Federal tribunals in the United States, federal court cases, and over Stat ...
from 1988 until his retirement in 2018. He was nominated to the court in 1987 by President
Ronald Reagan Ronald Wilson Reagan ( ; February 6, 1911June 5, 2004) was an American politician, actor, and union leader who served as the 40th president of the United States from 1981 to 1989. He also served as the 33rd governor of California from 1967 ...
, and sworn in on February 18, 1988. After the retirement of
Sandra Day O'Connor Sandra Day O'Connor (born March 26, 1930) is an American retired attorney and politician who served as the first female associate justice of the Supreme Court of the United States from 1981 to 2006. She was both the first woman nominated and th ...
in 2006, he was the
swing vote A swing vote is a vote that is seen as potentially going to any of a number of candidates in an election, or, in a two-party system, may go to either of the two dominant political parties. Such votes are usually sought after in election campaign ...
on many of the Roberts Court's 5–4 decisions. Born in
Sacramento, California ) , image_map = Sacramento County California Incorporated and Unincorporated areas Sacramento Highlighted.svg , mapsize = 250x200px , map_caption = Location within Sacramento C ...
, Kennedy took over his father's legal practice in Sacramento after graduating from
Harvard Law School Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States. Each c ...
. In 1975, President
Gerald Ford Gerald Rudolph Ford Jr. ( ; born Leslie Lynch King Jr.; July 14, 1913December 26, 2006) was an American politician who served as the 38th president of the United States from 1974 to 1977. He was the only president never to have been elected ...
appointed Kennedy to the
United States Court of Appeals for the Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
. In November 1987, after two failed attempts at nominating a successor to Associate Justice Lewis F. Powell Jr., President Reagan nominated Kennedy to the Supreme Court. Kennedy won unanimous confirmation from the
United States Senate The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States. The composition and po ...
in February 1988. Following the death of
Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
in February 2016, Kennedy became the senior associate justice of the court; he remained the senior associate justice until his July 2018 retirement. Kennedy retired during the presidency of
Donald Trump Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who served as the 45th president of the United States from 2017 to 2021. Trump graduated from the Wharton School of the University of P ...
and was succeeded by his former law clerk,
Brett Kavanaugh Brett Michael Kavanaugh ( ; born February 12, 1965) is an American lawyer and jurist serving as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on July 9, 2018, and has served since O ...
. Kennedy authored the majority opinion in several important cases—including '' Boumediene v. Bush''; '' Citizens United v. FEC''; and four major
gay rights Rights affecting lesbian, gay, bisexual, and transgender (LGBT) people vary greatly by country or jurisdiction—encompassing everything from the legal recognition of same-sex marriage to the death penalty for homosexuality. Notably, , ...
cases: '' Romer v. Evans'', ''
Lawrence v. Texas ''Lawrence v. Texas'', 539 U.S. 558 (2003), is a landmark decision of the U.S. Supreme Court in which the Court ruled that most sanctions of criminal punishment for consensual, adult non- procreative sexual activity (commonly referred to as sod ...
'', '' United States v. Windsor'', and '' Obergefell v. Hodges''. He also co-authored the plurality opinion in ''
Planned Parenthood v. Casey ''Planned Parenthood v. Casey'', 505 U.S. 833 (1992), was a landmark case of the Supreme Court of the United States in which the Court upheld the right to have an abortion as established by the "essential holding" of ''Roe v. Wade'' (1973) and is ...
''.


Early life and education

Kennedy was born and raised in an Irish Catholic family in
Sacramento, California ) , image_map = Sacramento County California Incorporated and Unincorporated areas Sacramento Highlighted.svg , mapsize = 250x200px , map_caption = Location within Sacramento C ...
. He was the son of Anthony J. Kennedy, an attorney with a reputation for influence in the
California State Legislature The California State Legislature is a bicameral state legislature consisting of a lower house, the California State Assembly, with 80 members; and an upper house, the California State Senate, with 40 members. Both houses of the Legislatu ...
, and Gladys (''
née A birth name is the name of a person given upon birth. The term may be applied to the surname, the given name, or the entire name. Where births are required to be officially registered, the entire name entered onto a birth certificate or birth re ...
'' McLeod), who participated in many local civic activities. As a boy, Kennedy came into contact with prominent politicians of the day, such as California Governor and future Chief Justice of the United States
Earl Warren Earl Warren (March 19, 1891 – July 9, 1974) was an American attorney, politician, and jurist who served as the 14th Chief Justice of the United States from 1953 to 1969. The Warren Court presided over a major shift in American constitutio ...
. As a young man, Kennedy served as a page in the
California State Senate The California State Senate is the upper house of the California State Legislature, the lower house being the California State Assembly. The State Senate convenes, along with the State Assembly, at the California State Capitol in Sacramento. D ...
. Kennedy attended C. K. McClatchy High School, where he was an honors student and graduated in 1954. Following in his mother's footsteps, Kennedy enrolled at
Stanford University Stanford University, officially Leland Stanford Junior University, is a private research university in Stanford, California. The campus occupies , among the largest in the United States, and enrolls over 17,000 students. Stanford is conside ...
where he developed an interest in constitutional law. After spending his senior year at the
London School of Economics , mottoeng = To understand the causes of things , established = , type = Public research university , endowment = £240.8 million (2021) , budget = £391.1 milli ...
, Kennedy graduated
Phi Beta Kappa The Phi Beta Kappa Society () is the oldest academic honor society in the United States, and the most prestigious, due in part to its long history and academic selectivity. Phi Beta Kappa aims to promote and advocate excellence in the liberal ...
from Stanford in 1958 with a
Bachelor of Arts Bachelor of arts (BA or AB; from the Latin ', ', or ') is a bachelor's degree awarded for an undergraduate program in the arts, or, in some cases, other disciplines. A Bachelor of Arts degree course is generally completed in three or four yea ...
degree in
political science Political science is the scientific study of politics. It is a social science dealing with systems of governance and power, and the analysis of political activities, political thought, political behavior, and associated constitutions and ...
. Kennedy then attended
Harvard Law School Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States. Each c ...
, graduating in 1961 with a
Bachelor of Laws Bachelor of Laws ( la, Legum Baccalaureus; LL.B.) is an undergraduate law degree in the United Kingdom and most common law jurisdictions. Bachelor of Laws is also the name of the law degree awarded by universities in the People's Republic of Ch ...
''
cum laude Latin honors are a system of Latin phrases used in some colleges and universities to indicate the level of distinction with which an academic degree has been earned. The system is primarily used in the United States. It is also used in some Sou ...
''.


Early career

Kennedy was in private practice in San Francisco from 1961 to 1963. In 1963, following his father's death, he took over his father's Sacramento practice, which he operated until 1975. From 1965 to 1988, he was a professor of constitutional law at McGeorge School of Law, at the University of the Pacific. During Kennedy's time as a California law professor and attorney, he helped California Governor
Ronald Reagan Ronald Wilson Reagan ( ; February 6, 1911June 5, 2004) was an American politician, actor, and union leader who served as the 40th president of the United States from 1981 to 1989. He also served as the 33rd governor of California from 1967 ...
draft a state tax proposal. Kennedy served in the California Army National Guard from 1961 to 1962 and became a
private first class Private first class (french: Soldat de 1 classe; es, Soldado de primera) is a military rank held by junior enlisted personnel in a number of armed forces. French speaking countries In France and other French speaking countries, the rank (; ...
. He was on the board of the
Federal Judicial Center The Federal Judicial Center is the education and research agency of the United States federal courts. It was established by in 1967, at the recommendation of the Judicial Conference of the United States. According to , the main areas of respo ...
from 1987 to 1988. He also served on two committees of the
Judicial Conference of the United States The Judicial Conference of the United States, formerly known as the Conference of Senior Circuit Judges, was created by the United States Congress in 1922 with the principal objective of framing policy guidelines for administration of judicial cour ...
: the Advisory Panel on Financial Disclosure Reports and Judicial Activities (subsequently renamed the Advisory Committee on Codes of Conduct) from 1979 to 1987, and the Committee on Pacific Territories from 1979 to 1990, which he chaired from 1982 to 1990.


U.S. Court of Appeals for the Ninth Circuit

On March 3, 1975, upon Reagan's recommendation,
President President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university * President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ...
Gerald Ford Gerald Rudolph Ford Jr. ( ; born Leslie Lynch King Jr.; July 14, 1913December 26, 2006) was an American politician who served as the 38th president of the United States from 1974 to 1977. He was the only president never to have been elected ...
nominated Kennedy to the seat on the
United States Court of Appeals for the Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
that had been vacated by Charles Merton Merrill. Kennedy was unanimously confirmed by the U.S. Senate on March 20 and received his commission on March 24, 1975.


Supreme Court of the United States


Nomination and confirmation

In July 1987, President Ronald Reagan nominated
Robert Bork Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American jurist who served as the solicitor general of the United States from 1973 to 1977. A professor at Yale Law School by occupation, he later served as a judge on the U.S. Cour ...
to the Supreme Court seat vacated by Lewis F. Powell Jr., who had announced his retirement in late June. However, he was rejected 42–58 by the Senate on October 23. The president's next nominee, Douglas Ginsburg, withdrew his name from consideration on November 7 after admitting to
marijuana Cannabis, also known as marijuana among other names, is a psychoactive drug from the cannabis plant. Native to Central or South Asia, the cannabis plant has been used as a drug for both recreational and entheogenic purposes and in various t ...
use, and
Senate Judiciary Committee The United States Senate Committee on the Judiciary, informally the Senate Judiciary Committee, is a standing committee of 22 U.S. senators whose role is to oversee the Department of Justice (DOJ), consider executive and judicial nominations ...
member
Patrick Leahy Patrick Joseph Leahy (; born March 31, 1940) is an American politician and attorney who is the senior United States senator from Vermont and serves as the president pro tempore of the United States Senate. A member of the Democratic Party, ...
said that if Reagan's next nominee was unacceptable to Senate Democrats, they would refuse hearings for any candidate until after the 1988 presidential election. On November 11, 1987, Reagan nominated Anthony Kennedy to fill Powell's seat. Kennedy was then subjected to an unprecedentedly thorough investigation of his background, which did not uncover any information that would hinder his nomination. In a Ninth Circuit dissent that Kennedy wrote before joining the Supreme Court, he criticized police for bribing a child into showing them where the child's mother hid drugs. Considering such conduct offensive and destructive of the family, Kennedy wrote that "indifference to personal liberty is but the precursor of the state's hostility to it." Kennedy wrote an article the year before, however, about judicial restraint, and the following excerpt from it was read aloud by Jeffrey Levi, executive director of the National Gay & Lesbian Taskforce, at his confirmation hearing: Kennedy said about '' Griswold v. Connecticut'', a privacy case about the use of contraceptives, "I really think I would like to draw the line and not talk about the ''Griswold'' case so far as its reasoning or its result." He also discussed "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. His hearings before the Senate Judiciary Committee began on December 14, and lasted just three consecutive days. When the Senate voted on Kennedy's nomination, he received bipartisan support. Maureen Hoch of PBS wrote that he "virtually sailed through the confirmation process and was widely viewed by conservatives and liberals alike as balanced and fair". The U.S. Senate confirmed him on February 3, 1988, by a vote of 97 to 0. Absent from the vote were three Democrats:
Paul Simon Paul Frederic Simon (born October 13, 1941) is an American musician, singer, songwriter and actor whose career has spanned six decades. He is one of the most acclaimed songwriters in popular music, both as a solo artist and as half of folk roc ...
and
Al Gore Albert Arnold Gore Jr. (born March 31, 1948) is an American politician, businessman, and environmentalist who served as the 45th vice president of the United States from 1993 to 2001 under President Bill Clinton. Gore was the Democratic ...
were
campaigning Campaign or The Campaign may refer to: Types of campaigns * Campaign, in agriculture, the period during which sugar beets are harvested and processed *Advertising campaign, a series of advertisement messages that share a single idea and theme * Bl ...
and Joe Biden was ill. Attorney General Edwin Meese presented Kennedy's commission to the court in a swearing-in ceremony on February 18, 1988.


Tenure and analysis

Although appointed by a Republican president, Kennedy was not easily pigeonholed ideologically; he had a reputation for looking at cases individually instead of deciding them on the basis of a rigid ideology. ''
Vanity Fair Vanity Fair may refer to: Arts, entertainment and media Literature * Vanity Fair, a location in '' The Pilgrim's Progress'' (1678), by John Bunyan * ''Vanity Fair'' (novel), 1848, by William Makepeace Thackeray * ''Vanity Fair'' (magazines), the ...
'' quoted several former Supreme Court clerks as indicating that they believe Kennedy was often swayed by the opinions of his clerks, including his ruling on ''
Planned Parenthood v. Casey ''Planned Parenthood v. Casey'', 505 U.S. 833 (1992), was a landmark case of the Supreme Court of the United States in which the Court upheld the right to have an abortion as established by the "essential holding" of ''Roe v. Wade'' (1973) and is ...
''. One clerk derisively stated that "the premise is that he can't think by himself, and that he can be manipulated by someone in his second year of law school". This notion also led the Federalist Society to target Kennedy with more conservative clerks, believing this would make Kennedy more conservative. Two of his former clerks,
Neil Gorsuch Neil McGill Gorsuch ( ; born August 29, 1967) is an American lawyer and judge who serves as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on January 31, 2017, and has served since ...
and
Brett Kavanaugh Brett Michael Kavanaugh ( ; born February 12, 1965) is an American lawyer and jurist serving as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on July 9, 2018, and has served since O ...
, eventually became Supreme Court justices. Conservative pundit George Will and
Georgetown University Law Center The Georgetown University Law Center (Georgetown Law) is the law school of Georgetown University, a private research university in Washington, D.C. It was established in 1870 and is the largest law school in the United States by enrollment and ...
professor Randy Barnett have described Kennedy's jurisprudence as "
libertarian Libertarianism (from french: libertaire, "libertarian"; from la, libertas, "freedom") is a political philosophy that upholds liberty as a core value. Libertarians seek to maximize autonomy and political freedom, and minimize the state's en ...
", although other legal scholars have disagreed. Kennedy issued conservative rulings during most of his tenure, having voted with William Rehnquist as often as any other justice from 1992 to the end of the Rehnquist Court in 2005. In his first term on the Court, Kennedy voted with Rehnquist 92 percent of the time—more than any other justice. Before becoming the swing vote on the court in 2006, Kennedy sided with conservatives during close rulings 75 percent of the time. However, Kennedy was also known for siding with the court's liberal justices on high-profile social issues like same-sex marriage and abortion. Kennedy was known as a swing vote on the court, and this reputation became more pronounced after the 2005 retirement of Justice
Sandra Day O'Connor Sandra Day O'Connor (born March 26, 1930) is an American retired attorney and politician who served as the first female associate justice of the Supreme Court of the United States from 1981 to 2006. She was both the first woman nominated and th ...
(who had previously been known as the court's swing vote). Kennedy, who was slightly more conservative than former Justice O'Connor was on issues of race, religion, and abortion, intensely disliked being labeled a "swing vote" in public. However, interviews with former clerks indicate that, behind the scenes, he relished his role as the deciding vote, to the point that some of them expressed a belief that he would pretend to waver on votes when he had, in fact, already made up his mind. On the Roberts Court, Kennedy often decided the outcome of cases. 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. Of those 23 decisions, 16 were strictly along ideological lines, and Kennedy joined the conservative wing of the court 11 times; the liberals, five. In the 2010–2011 term, 16 cases were decided by a 5–4 vote; Kennedy joined the majority in 14 of the decisions. Following the death of
Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
in February 2016, Kennedy became the Senior Associate Justice of the court and the last appointed by President Reagan; he remained the Senior Associate Justice until his retirement. Kennedy retired from the Supreme Court and made the transition to
senior status Senior status is a form of semi- retirement for United States federal judges. To qualify, a judge in the federal court system must be at least 65 years old, and the sum of the judge's age and years of service as a federal judge must be at leas ...
effective July 31, 2018. He has the distinction of being the only Supreme Court Justice to have two former clerks of his be appointed to the Supreme Court,
Neil Gorsuch Neil McGill Gorsuch ( ; born August 29, 1967) is an American lawyer and judge who serves as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on January 31, 2017, and has served since ...
and
Brett Kavanaugh Brett Michael Kavanaugh ( ; born February 12, 1965) is an American lawyer and jurist serving as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on July 9, 2018, and has served since O ...
.


Conservative criticism

According to legal reporter Jan Crawford, Kennedy attracted the ire of conservatives when he did not vote with his more conservative colleagues.Greenburg, Jan Crawford. ''Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court''. 2007. Penguin Books. Pages 86, 162. In 2005, Tom DeLay criticized Kennedy for his reliance on international law and for conducting his own Internet research, calling him a judicial activist. According to legal analyst Jeffrey Toobin, some conservatives viewed Kennedy's pro-gay-rights and pro-choice rulings as betrayals. According to Crawford, the "bitter" quality of some movement conservatives' views on Kennedy stems from his eventual rethinking of positions on abortion, religion, and the death penalty (which Kennedy believes can not be constitutionally applied to juveniles or intellectually disabled people). A short 2008 law review article by retired lawyer Douglas M. Parker in '' The Green Bag'' charged that much of the criticism of Kennedy was based upon " pop psychology" rather than careful analysis of his opinions. Kennedy himself responds to concerns about judicial activism this way: "An activist court is a court that makes a decision you don't like."


Internationalism

According to ''
The New Yorker ''The New Yorker'' is an American weekly magazine featuring journalism, commentary, criticism, essays, fiction, satire, cartoons, and poetry. Founded as a weekly in 1925, the magazine is published 47 times annually, with five of these issues ...
'' staff writer
Jeffrey Toobin Jeffrey Ross Toobin (; born May 21, 1960) is an American lawyer, author, blogger, and longtime legal analyst for CNN. He left CNN on September 4, 2022. During the Iran–Contra affair, Toobin served as an associate counsel on this investigation ...
, starting in 2003, Kennedy 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. Defending his use of international law, in 2005 Kennedy told Toobin, "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." A 2008 profile of Kennedy in the ''Los Angeles Times'' focused on his internationalist perspective. According to David Savage, Kennedy had become a strong proponent of interpreting the guarantees of liberty and equality in line with modern human rights law: "lawyers and judges have come to believe the basic principles of human rights are common to the peoples of world ."


Jurisprudence


Abortion

In '' Hodgson v. Minnesota'', 497 U.S. 417 (1990), Kennedy voted to uphold a restriction on abortion for minors that required both parents to be notified about the procedure. Kennedy joined O'Connor's plurality opinion in ''
Planned Parenthood v. Casey ''Planned Parenthood v. Casey'', 505 U.S. 833 (1992), was a landmark case of the Supreme Court of the United States in which the Court upheld the right to have an abortion as established by the "essential holding" of ''Roe v. Wade'' (1973) and is ...
'' (1992), which reaffirmed in principle (though without many details) the ''
Roe v. Wade ''Roe v. Wade'', 410 U.S. 113 (1973),. was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision struck down many federal and st ...
'' decision recognizing the right to abortion under the
Due Process Clause In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except a ...
of the Fourteenth Amendment. The plurality opinion, signed jointly by three justices appointed by
Ronald Reagan Ronald Wilson Reagan ( ; February 6, 1911June 5, 2004) was an American politician, actor, and union leader who served as the 40th president of the United States from 1981 to 1989. He also served as the 33rd governor of California from 1967 ...
and George H. W. Bush, ignited a firestorm of criticism from conservatives. Kennedy had stated at least as early as 1989 that, in order to uphold precedent, he might not vote to overturn ''Roe''. According to Court insiders, Kennedy had reportedly considered overturning ''Roe'', but in the end decided to uphold restrictions while affirming the ''Roe'' precedent. In later abortion decisions, it became apparent that Kennedy thought ''Casey'' had narrowed ''Roe'' and allowed more restrictions. Owing to the Court's altered composition under President Clinton, Kennedy was no longer the fifth vote to strike down abortion restrictions. Hence, O'Connor became the justice who defined the meaning of ''Casey'' in subsequent cases, while Kennedy was relegated to dissents in which he sought to explain what he thought ''Casey'' meant. For example, Kennedy dissented in the 2000 decision in '' Stenberg v. Carhart'', which struck down laws criminalizing partial-birth abortion. After the judicial appointments made by President George W. Bush, Kennedy again became the needed fifth vote to strike down abortion restrictions. Since Kennedy's conception of abortion rights was narrower than O'Connor's, the court became slightly more supportive of abortion restrictions after 2006. Kennedy wrote the majority opinion in '' Gonzales v. Carhart'', 550 U.S. 124 (2007), which held that a federal law criminalizing partial-birth abortion did not violate ''Casey'' because it did not impose an "undue burden" upon the exercise of abortion rights. The decision did not expressly overrule ''Stenberg'', although many commentators saw it as having that effect.


First amendment rights of contractors

O'Hare Truck Service, Inc. was a towing company employed under contract by the City of Northlake in northern
Illinois Illinois ( ) is a state in the Midwestern United States. Its largest metropolitan areas include the Chicago metropolitan area, and the Metro East section, of Greater St. Louis. Other smaller metropolitan areas include, Peoria and Rock ...
. Northlake removed O'Hare from its list on towing companies because the company's owner did not support Northlake's mayoral candidate in his reelection campaign: instead, the owner supported an opposition candidate. The
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
held, in a majority 7:2 opinion written by Kennedy, (O'Hare Truck Service, Inc. v. City of Northlake) that independent contractors such as O'Hare are entitled to the same
First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and reco ...
protections as those afforded to government employees. Accordingly, Northlake could not base the towing company's employment on its political affiliations or beliefs unless the city could demonstrate that their political affiliations "had a reasonable and appreciable effect on its job performance". The Court held that Northlake neither attempted nor would it have been able to make such a demonstration. Therefore, Northlake's removal of O'Hare Truck Service from its employment list was unconstitutional.


Capital punishment

With the Court's majority in '' Atkins v. Virginia'' and ''
Roper v. Simmons ''Roper v. Simmons'', 543 U.S. 551 (2005), was a landmark decision in which the Supreme Court of the United States held that it is unconstitutional to impose capital punishment for crimes committed while under the age of 18. The 5–4 decision ov ...
'', Kennedy agreed that the execution of the mentally ill and those under 18 at the time of the crime was unconstitutional. In '' Kansas v. Marsh'', however, he declined to join the dissent, which questioned the overall "soundness" of the existing capital punishment system. In 2008, Kennedy wrote the majority opinion in '' Kennedy v. Louisiana''. The opinion, joined by the court's four more liberal justices, held, " e 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 that "there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, 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 be compared 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."


Environment

Kennedy wrote the majority decision in '' Coeur Alaska, Inc. v. Southeast Alaska Conservation Council'' (2009), which involved an Alaskan mining company that planned to extract new gold from a mine that had been closed for decades using a technique known as "froth-flotation". This technique would produce approximately 4.5 million tons of "slurry", a thick waste product laced with toxic elements such as lead and mercury. The company intended to dispose of the waste in a nearby lake, which would eventually decrease the depth of the lake by fifty feet and flood the surrounding land with contaminated water. While federal law forbids " e use of any river, lake, stream or ocean as a waste treatment system", Kennedy's decision stated that pollutants are exempt from this law so long as they have "the effect of ... changing the bottom elevation of water". Justice Ginsburg's dissent stated that such a reading of federal law "strains credulity" because it allows " ole categories of regulated industries" to "gain immunity from a variety of pollution-control standards".


Gay rights and homosexuality

Kennedy's concept of liberty has included protections for sexual orientation. As early as 1980, then-Judge Kennedy speculated that some homosexual behavior is constitutionally protected. He wrote the Court's opinion in '' Romer v. Evans'' (1996), invalidating a provision in the
Colorado Constitution The Constitution of the State of Colorado is the foundation of the laws and government of the U.S. state of Colorado. The current, and only, Colorado State Constitution was drafted on March 14, 1876; approved by Colorado voters on July 1, 1876; ...
denying homosexuals the right to bring local discrimination claims. In 2003, he wrote the Court's opinion in ''
Lawrence v. Texas ''Lawrence v. Texas'', 539 U.S. 558 (2003), is a landmark decision of the U.S. Supreme Court in which the Court ruled that most sanctions of criminal punishment for consensual, adult non- procreative sexual activity (commonly referred to as sod ...
'', which invalidated criminal laws against homosexual
sodomy Sodomy () or buggery (British English) is generally anal or oral sex between people, or sexual activity between a person and a non-human animal ( bestiality), but it may also mean any non- procreative sexual activity. Originally, the term ''s ...
on the basis of the
Due Process Clause In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except a ...
of the
United States Constitution The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
, overturning the Court's previous ruling in ''
Bowers v. Hardwick ''Bowers v. Hardwick'', 478 U.S. 186 (1986), was a landmark decision of the U.S. Supreme Court that upheld, in a 5–4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults, i ...
'' (1986). In both cases, he sided with the more liberal members of the Court. He wrote that the Court had misread the historical record regarding laws criminalizing homosexual relations in ''Bowers'', stating that further research showed that American anti-sodomy laws had historically been directed at "nonprocreative sexual activity more generally," rather than specifically at homosexual acts. Combined with the fact that such laws had often gone unenforced, the Court saw this as constituting a tradition of avoiding interference with private sexual activity between consenting adults. He also said that the reasoning behind ''Bowers'' was not accepted by the United States government (as in the Model Penal Code's recommendations starting in 1955) and that it had been rejected by most other developed Western countries (as in the
Wolfenden Report The Report of the Departmental Committee on Homosexual Offences and Prostitution (better known as the Wolfenden report, after Sir John Wolfenden, the chairman of the committee) was published in the United Kingdom on 4 September 1957 after a suc ...
of 1957 and a 1981 decision of the
European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
in Case 7525/76, '' Dudgeon v United Kingdom''). As a result, Kennedy stated that there was a jurisprudential basis for thinking that "an integral part of human freedom" is allowing consenting adults to choose to privately engage in sexual activity. In the 2000 case of '' Boy Scouts of America v. Dale'', Kennedy voted, with four other justices, to uphold the
Boy Scouts of America The Boy Scouts of America (BSA, colloquially the Boy Scouts) is one of the largest scouting organizations and one of the largest youth organizations in the United States, with about 1.2 million youth participants. The BSA was founded in ...
's organizational right to ban homosexuals from being scoutmasters. On October 19, 2009, Kennedy temporarily blocked Washington state officials from releasing the names of people who signed petitions calling for a referendum ballot measure that would repeal a gay rights domestic partnership law, but joined the subsequent majority decision in '' Doe v. Reed'', which stated the Washington law permitting signature release was constitutional, but remanded the matter to the lower court to determine whether the release of this particular petition's signatures was constitutional. In '' Christian Legal Society v. Martinez'' (2010), the Court held that a public law college's policy requiring that all student organizations allow any student to join was constitutional. The Christian Legal Society wanted an exemption from the policy because the organization barred students based on religion and sexual orientation.
Hastings College of Law The University of California, Hastings College of the Law (UC Hastings) is a public law school in San Francisco, California. Founded in 1878 by Serranus Clinton Hastings, UC Hastings was the first law school of the University of California a ...
refused to grant the exemption. The court found that Hastings' policy was reasonable and viewpoint neutral. Kennedy wrote a concurrence joining the majority. 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. The closing paragraph of Kennedy's ruling has been used by many couples in their marriage vows:


Gun issues

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 ) , image_skyline = , image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle (Washington, D.C.), Logan Circle, Jefferson Memoria ...
. At issue was whether Washington, D.C.'s ban violated the right to "keep and bear arms" by preventing individuals from having guns in their homes. Kennedy sided with the conservatives on the Court, holding that the
Second Amendment The second (symbol: s) is the unit of time in the International System of Units (SI), historically defined as of a day – this factor derived from the division of the day first into 24 hours, then to 60 minutes and finally to 60 seconds each ...
recognized an individual's right to keep and bear arms. (The decision came the day after the Court's ruling in '' Kennedy v. Louisiana'', a capital punishment decision written by Kennedy, in which he sided with the liberal justices.) Two years later, in '' McDonald v. Chicago'', Kennedy joined the majority opinion holding that the
Second Amendment The second (symbol: s) is the unit of time in the International System of Units (SI), historically defined as of a day – this factor derived from the division of the day first into 24 hours, then to 60 minutes and finally to 60 seconds each ...
's protections for the
right to keep and bear arms The right to keep and bear arms (often referred to as the right to bear arms) is a right for people to possess weapons (arms) for the preservation of life, liberty, and property. The purpose of gun rights is for self-defense, including securi ...
are incorporated against the states through the
Due Process Clause In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except a ...
of the Fourteenth Amendment.


Habeas corpus

On June 12, 2008, Kennedy wrote the 5–4 majority opinion in '' Boumediene v. Bush''. The case challenged the legality of Lakhdar Boumediene'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 justices in finding that the constitutionally guaranteed right of
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, ...
applies to persons held in Guantanamo Bay and to persons designated as enemy combatants on that territory. They also found that the Detainee Treatment Act of 2005 failed to provide an adequate substitute for habeas corpus and that the MCA was an unconstitutional suspension of that right. The court also concluded that the detainees are not required to exhaust review procedures in the court of appeals before seeking habeas relief in the district court. In the ruling, Kennedy called the
Combatant Status Review Tribunal The Combatant Status Review Tribunals (CSRT) were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were estab ...
s "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 of the MCA but left intact the Detainee Treatment Act. In a concurring opinion, Justice
Souter Souter (, ) is a Scottish surname derived from the Scots language term for a shoemaker, and may refer to: * A nickname for any native inhabitant of the Royal Burgh of Selkirk, in the Scottish Borders * Alexander Souter (1873–1949), Scottish bib ...
stressed the fact that the prisoners involved had been imprisoned for as many as six years.


Religious liberty

On issues of religion, Kennedy held to a less separationist reading of the Establishment Clause than did his colleague, Justice Sandra Day O'Connor, favoring a "Coercion Test" that he detailed in '' County of Allegheny v. ACLU''. Kennedy authored the majority opinion in ''
Town of Greece v. Galloway ''Town of Greece v. Galloway'', 572 U.S. 565 (2014), is a United States Supreme Court case in which the court decided that the Town of Greece, New York may permit volunteer chaplains to open each legislative session with a prayer. The plaintiffs ...
'', 572 U.S. 565 (2014), concluding, "The town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition, and does not coerce participation by nonadherents."


Super PACs

Justice Kennedy's majority opinionSyllabus : Citizens United v. Federal Election Commission
, Supreme Court of the United States.
in '' Citizens United'' found that the BCRA §203 prohibition of all independent expenditures by corporations and unions violated the First Amendment's protection of free speech. The majority wrote, "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." Justice Kennedy's opinion for the majority also noted 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. The court overruled ''
Austin v. Michigan Chamber of Commerce ''Austin v. Michigan Chamber of Commerce'', 494 U.S. 652 (1990), is a United States corporate law case of the Supreme Court of the United States holding that the Michigan Campaign Finance Act, which prohibited corporations from using treasury mon ...
'' (1990), which had held that a state law that prohibited corporations from using treasury money to support or oppose candidates in elections did not violate the First and Fourteenth Amendments. The Court also overruled that portion of '' McConnell v. FEC'' (2003) that upheld BCRA's restriction of corporate spending on "electioneering communications". The Court's ruling effectively freed corporations and unions to spend money both on "electioneering communications" and to directly advocate for the election or defeat of candidates (although not to contribute directly to candidates or political parties). On October 25, 2011,
Richard L. Hasen Richard L. Hasen is an American legal scholar and law professor at the University of California, Los Angeles. He is an expert in legislation, election law and campaign finance. Early life and education Hasen received his Bachelor of Arts with h ...
wrote that in the 2012 election super PACs "will likely replace political parties as a conduit for large, often secret contributions, allowing an end run around the $2,500 individual contribution limit and the bar on corporate and labor contributions to federal candidates". According to Hasen, the rise of super PACs dates to a sentence in Kennedy's opinion in '' Citizens United'': "We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." Kennedy also wrote in his opinion that he was not concerned if higher expenditures by people or corporations were viewed as leading to corruption, stating, "...the appearance of influence or access will not cause the electorate to lose faith in this democracy."


Other issues

On the issue of the limits of free speech, Kennedy joined a majority to protect flag burning in the controversial case of '' Texas v. Johnson'' (1989). In his concurrence, Kennedy wrote, "It is poignant but fundamental that the flag protects those who hold it in contempt." He took a very broad view of constitutional protection for speech under the First Amendment, invalidating a congressional law prohibiting "virtual" child pornography in ''Ashcroft v. ACLU'' (2002). 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 halted continuing recounts in the 2000 presidential election and ended the legal challenge to the election of President George Bush. Although the decision was published without an author, Kennedy wrote the decision. Behind the scenes, colleagues criticized his professionalism in this case, feeling that he inflated the numbers of his majority opinion by deciding, without consulting the dissenting justices, to implicate some of the dissenters as having joined his opinion in part. In the 2005 ''
Gonzales v. Raich ''Gonzales v. Raich'' (previously ''Ashcroft v. Raich''), 545 U.S. 1 (2005), was a decision by the U.S. Supreme Court ruling that under the Commerce Clause of the U.S. Constitution, Congress may criminalize the production and use of homegrown ca ...
'' case, he joined the liberal members of the Court (along with conservative
Justice Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectua ...
) in permitting the federal government to prohibit the use of
medical marijuana Medical cannabis, or medical marijuana (MMJ), is cannabis and cannabinoids that are prescribed by physicians for their patients. The use of cannabis as medicine has not been rigorously tested due to production and governmental restriction ...
, even in states where it is legal. Several weeks later, in the controversial case of ''
Kelo v. City of New London ''Kelo v. City of New London'', 545 U.S. 469 (2005), was a landmark decision by the Supreme Court of the United States in which the Court held, 5–4, that the use of eminent domain to transfer land from one private owner to another private owner ...
'' (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. In ''Norfolk & Western Railway Co. v. Ayers'' (2003), Kennedy wrote a partial dissent in which he argued that railroad workers who had contracted asbestosis from their employment should not be entitled to recovery for the emotional pain and suffering from their increased risk of cancer. In '' Baze v. Rees'', Kennedy played a deciding role in the outcome of lethal injection. Some correspondents believed he would play a larger role, believing more than two judges would dissent. A December 2011 article in the ''Huffington Post'' noted that Kennedy in ''
Melendez-Diaz v. Massachusetts ''Melendez-Diaz v. Massachusetts'', 557 U.S. 305 (2009), is a United States Supreme Court case in which the Court held that it was a violation of the Sixth Amendment right of confrontation for a prosecutor to submit a chemical drug test report wit ...
'' (2009) and '' Bullcoming v. New Mexico'' (2011) dissented on an interpretation of the Sixth Amendment right to confront witnesses, where a lab tech who created a forensic report on a case is required to testify at trial if called. His dissents, joined by Roberts, Breyer, and Alito, claimed that the rule would place a burden on understaffed labs. However, in ''Williams v. Illinois'', Kennedy sided with Scalia's interpretation of the amendment.


Public speaking and teaching

Kennedy called for reform of overcrowded American prisons in a speech before the
American Bar Association The American Bar Association (ABA) is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. Founded in 1878, the ABA's most important stated activities are the setting of aca ...
. He has spent his summers in
Salzburg Salzburg (, ; literally "Salt-Castle"; bar, Soizbuag, label=Austro-Bavarian) is the fourth-largest city in Austria. In 2020, it had a population of 156,872. The town is on the site of the Roman settlement of ''Iuvavum''. Salzburg was founded ...
, Austria, where he teaches international and American law at the University of Salzburg for the McGeorge School of Law international program and has attended the large yearly international judges' conference held there. In 1994, he ran a series of mock trials of Shakespeare's character
Hamlet ''The Tragedy of Hamlet, Prince of Denmark'', often shortened to ''Hamlet'' (), is a tragedy written by William Shakespeare sometime between 1599 and 1601. It is Shakespeare's longest play, with 29,551 words. Set in Denmark, the play depicts ...
, for his murder of Polonius. Alan Stone was a psychiatric witness for the prosecution, tasked with fighting against an insanity defense. The juries usually deadlocked. In 2005, Kennedy received the Golden Plate Award of the
American Academy of Achievement The American Academy of Achievement, colloquially known as the Academy of Achievement, is a non-profit educational organization that recognizes some of the highest achieving individuals in diverse fields and gives them the opportunity to meet ...
presented by Awards Council member Sir Roger Bannister. In January 2015, Kennedy recorded a short interview for Historic Mount Vernon about the vital role
George Washington George Washington (February 22, 1732, 1799) was an American military officer, statesman, and Founding Father who served as the first president of the United States from 1789 to 1797. Appointed by the Continental Congress as commander of ...
had played in the drafting and early interpretation of the Constitution.


Personal life

On June 23, 1963, Kennedy married Mary Jeanne Davis from Sacramento, California. The Kennedys have three children: Justin, Gregory, and Kristin. Mary Kennedy and the three Kennedy children are all graduates of
Stanford Stanford University, officially Leland Stanford Junior University, is a Private university, private research university in Stanford, California. The campus occupies , among the largest in the United States, and enrolls over 17,000 students. S ...
. Mary Kennedy was a third grade teacher at the Golden Empire Elementary School in Sacramento. Justin Kennedy worked for
Goldman Sachs Goldman Sachs () is an American multinational investment bank and financial services company. Founded in 1869, Goldman Sachs is headquartered at 200 West Street in Lower Manhattan, with regional headquarters in London, Warsaw, Bangalore, Ho ...
, and then for
Deutsche Bank Deutsche Bank AG (), sometimes referred to simply as Deutsche, is a German multinational investment bank and financial services company headquartered in Frankfurt, Germany, and dual-listed on the Frankfurt Stock Exchange and the New York St ...
from 1997 to 2009; he became its global head of real estate capital markets. During his time at Deutsche Bank he helped Donald Trump secure a $640 million loan for a Chicago real estate project. Gregory attended Stanford Law School and was a president of the Stanford Federalist Society. He was an associate at
Sullivan & Cromwell Sullivan & Cromwell LLP is an American multinational law firm headquartered in New York City. Known as a white-shoe firm, Sullivan & Cromwell is recognized as a leader in business law, and is known for its impact on international affairs, such ...
in the 1990s, later worked at
UBS UBS Group AG is a multinational investment bank and financial services company founded and based in Switzerland. Co-headquartered in the cities of Zürich and Basel, it maintains a presence in all major financial centres as the largest Swi ...
, and, since October 2016, is the chief operating officer at the investment bank Disruptive Technology Advisers, which works closely with Dropbox, 23andMe, and Peter Thiel's Palantir Technologies. Kennedy is one of 15
Roman Catholics The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
to have served on the Supreme Court (out of a total of 115 justices).


See also

* List of justices of the Supreme Court of the United States * List of law clerks of the Supreme Court of the United States (Seat 1) *
List of United States Supreme Court justices by time in office A total of 116 people have served on the Supreme Court of the United States, the highest judicial body in the United States, since it was established in 1789. Supreme Court justices have life tenure, and so they serve until they die, resign, re ...
*
List of United States federal judges by longevity of service This is a list of Article III United States federal judges by longevity of service. The judges on the lists below were presidential appointees who have been confirmed by the Senate, and who served on the federal bench for over 40 years. It inclu ...
* United States Supreme Court cases during the Rehnquist Court * United States Supreme Court cases during the Roberts Court


Notes


References


Sources

*


Further reading

* Colucci, Frank J. ''Justice Kennedy's Jurisprudence: The Full and Necessary Meaning of Liberty'' (University Press of Kansas, 2009)
online review
* Knowles, Helen J. ''The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty'' (Rowman & Littlefield, 2009) . * Schmidt, Patrick D. and David A. Yalof. "The 'Swing Voter' Revisited: Justice Anthony Kennedy and the First Amendment Right of Free Speech", ''Political Research Quarterly'', June 2004, Vol. 57, Issue 2, pp. 209–217. * Toobin, Jeffrey. "Swing Shift: How Anthony Kennedy's passion for foreign law could change the Supreme Court", ''The New Yorker'' (2005)
online


External links

* * *

at OnTheIssues * Jonah Goldberg
"Justice Kennedy's Mind: Where the Constitution resides"
2005.
"Kennedy's Benchmarks"
by Mark Trapp, ''American Spectator'' (July 14, 2004). * ''Time'' magazine cover story
What Will Justice Kennedy Do?
als
pre-article
June 7, 2012

1987.
Supreme Court Associate Justice Nomination Hearings on Anthony McLeod Kennedy in December 1987
United States Government Publishing Office {{DEFAULTSORT:Kennedy, Anthony 1936 births Living people 20th-century American judges 20th-century American lawyers 20th-century Roman Catholics 21st-century American judges 21st-century American lawyers 21st-century Roman Catholics Alumni of the London School of Economics American legal scholars American people of Irish descent California lawyers California National Guard personnel California Republicans Catholics from California Harvard Law School alumni Judges of the United States Court of Appeals for the Ninth Circuit Justices of the Supreme Court of the United States Lawyers from Sacramento, California People from McLean, Virginia Stanford University alumni United States Army soldiers United States court of appeals judges appointed by Gerald Ford United States federal judges appointed by Ronald Reagan University of the Pacific (United States) faculty Catholics from Virginia