Kennedy, Anthony Mcleod (b. Sacramento, Calif., 23 July 1936), associate justice, 1988–. Justice Kennedy's parents, Anthony and Gladys Kennedy, were an economically comfortable, middle‐class professional family of the Roman Catholic faith. His undergraduate education combined work at Stanford University and the London School of Economics. After receiving his B.A. from Stanford in 1958, Kennedy studied at Harvard University Law School. Upon receiving his degree cum laude in 1961, he became an associate in the San Francisco law firm of Thelen, Marrin, John, and Bridges. He returned to Sacramento to private practice as a partner in the firm of Evans, Jackson, and Kennedy. In 1965, Kennedy began a long and cherished association with the McGeorge School of Law at the University of the Pacific. He taught constitutional law there until his elevation to the U.S. Supreme Court in 1988.
In his years as a private practitioner in San Francisco and Sacramento, Kennedy was an able lawyer of conservative inclination and Republican Party affiliation, as was his father. After his father's death, Kennedy gradually became more of an activist, expanding his circle of political friends, increasing his political campaign contributions, and influencing some of his clients to give generously to conservative causes. He also worked as a lobbyist and in that capacity became a close friend of Ed Meese, a lobbyist for the California District Attorneys Association. His friendship and cooperation with Meese continued after Ronald
Reagan was elected governor in 1966. Subsequently, Meese asked Kennedy to assist Reagan in 1973 in drafting Proposition 1, a ballot initiative to cut state spending. Kennedy campaigned throughout the state on its behalf. Although Proposition 1 failed, Reagan appreciated Kennedy's efforts and later recommended him to President Gerald R. Ford for a judicial vacancy on the Federal Ninth Circuit
Court of Appeals. After thirteen years in private practice, Kennedy took his oath of office on 3 May 1975. Between 1975 and 1988, the year he was named an associate justice of the Supreme Court, Kennedy wrote over four hundred decisions. When the
Senate Judiciary Committee considered his qualifications for elevation in its confirmation hearing, these circuit court decisions were subjected to sharp scrutiny as indicators of his views on the
separation of powers, and minority and
gender discrimination.
Despite a solid career as an able lawyer and circuit judge, Kennedy's emergence as President Reagan's successful nominee for the Supreme Court vacancy created by the resignation of Associate Justice Lewis
Powell was overshadowed by the events surrounding the nominations of Robert H.
Bork and Douglas
Ginsburg, both rejected for the same position. Comparisons between Bork and Kennedy enlivened Senate debate of the latter's qualifications. Kennedy received the highest evaluation of the
American Bar Association's Standing Committee on the Federal Judiciary—well qualified on the basis of his integrity, judicial temperament, and professional competence. In contrast, this committee had disagreed over Bork's qualifications, with four of its members voting him “not qualified” on the basis of his “extreme views respecting constitutional principles.”
Initially, Associate Justice Kennedy contributed substantially to conservative majority coalitions, voting with Chief Justice William Hubbs
Rehnquist in 90 percent, and Associate Justice Antonin
Scalia in 89 percent, of the cases heard by the end of the 1988–1989 Court term. These early percentages did not, however, provide a completely predictive model of Kennedy's unfolding career on the Court. Kennedy is often referred to as a moderate conservative. With Associate Justice Sandra Day
O'Connor, Kennedy is a swing voter, frequently voting with the conservatives Rehnquist, Scalia, and Associate Justice Clarence
Thomas, yet occasionally concurring with centrist or liberal Associate Justices Stephen G.
Breyer, Ruth Bader
Ginsburg, John Paul
Stevens, and David
Souter.
Kennedy's transition from a generally reliable supporter of Rehnquist to occasional swing voter has been complex. During his first four years on the Court, Kennedy rarely withheld support for an ever‐larger conservative majority. The consecutive appointments of Scalia, Kennedy, Souter, and Thomas had appeared to give the chief justice an invincible conservative majority. Moreover, the chief justice assigned the writing of a large number of majority opinions, some in important cases, to Kennedy, unusual for a relatively new member of the Court. In terms of doctrine, this confidence was apparently justified by Kennedy's earlier years of service within the judiciary. Some commentators nevertheless came to refer to Kennedy as “Rehnquist's lieutenant.”
However, the attempt by Rehnquist, Scalia, and Thomas to overrule
Roe v. Wade in *
Planned Parenthood v. Casey in 1992 was rejected by three fellow conservatives: Kennedy, O'Connor, and Souter. Their joint opinion concluded that the rejection of stare decisis “should rest on some special reason over and above the belief that a prior case was wrongly decided.” This division in conservative ranks was by no means universal, but it did mark a departure from the previous general solidarity among conservatives. Kennedy, O'Connor, and Souter often voted with their conservative colleagues in civil rights, criminal justice, and
property rights cases.
Chief Justice Rehnquist has long opposed the Jeffersonian position that the
First Amendment requires “a wall of separation between church and state,” arguing in an early case that this is a “misleading metaphor based on bad history.” O'Connor and Kennedy were crucial in defeating an effort to uphold graduation prayers led by a denominational cleric and student‐led prayers over a public school microphone in
Lee v. Weisman. Yet the positions of O'Connor and Kennedy in the most serious and controversial case decided after Kennedy became a member of the Court were neither noteworthy nor independent.
Bush v. Gore determined the outcome of the 2000 presidential election. It sharply divided the Court. It also aroused national partisan divisions. Every other justice expressed a strong position on the major issues, several in a number of separate opinions. In contrast, O'Connor and Kennedy quietly helped make a conservative majority.
Public policy positions taken outside the formal procedures of the Court also provide evidence of Kennedy's developing judicial persona. Perhaps the most important of these was his August 2003 address to the American Bar Association (ABA) calling for the abandonment of mandatory minimum sentences for some Federal crimes.
One serious constitutional issue that could call into question the very independence of the Supreme Court's justices and other
Article III judges is the judicial monitoring directive of Attorney General John Ashcroft during the first administration of President George W. Bush. In July 2003, Ashcroft ordered U.S. attorneys to carefully monitor Federal judges who impose criminal sentences more lenient than provided for in the fifteen‐year‐old Federal sentencing guidelines. Federal prosecutors were directed to immediately report any downward deviation to the Justice Department. Ashcroft concluded, “The Department of Justice has a solemn obligation to ensure that laws concerning criminal sentencing are faithfully, fairly, and consistently enforced.”
Prior to the Ashcroft directive, Justice Kennedy had upheld tough penalty legislation and agreed to the need for sentencing guidelines to define the range of potential punishments and minimize inconsistencies. He had voted with the conservative majority to uphold the constitutionality of California's “three strikes and you're out” legislation for felons. But the swiftness of his response to Ashcroft's 28 July directive suggests that Kennedy had been seriously reconsidering a number of these and related issues.
In early August of 2003, Kennedy addressed the ABA, stating, “Our resources are misspent, our punishments too severe, our sentences too long. … I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases, mandatory minimum sentences are unwise or unjust.” Although such laws have been upheld, Kennedy asked ABA members to persuade Congress to repeal mandatory minimum sentence laws. As he put it, “Courts may conclude that the legislation is permitted to choose long sentences, but that does not mean long sentences are wise or just.” Kennedy also urged ABA members to evaluate state and Federal criminal pardoning systems, stating that “the pardon process, of late, seems to have been drained of its moral force. Pardons are infrequent. … A people confident in its laws and institutions should not be ashamed of mercy.” He noted the large numbers of people “behind bars” of which “about 40% … is black,” concluding that “out of sight out of mind is an unacceptable excuse for a prison system that incarcerates over 2 million human beings in the United States.”
Justice Kennedy has indeed carved out a number of judicial and public policy positions independent of his original virtually complete commitment to the conservative Court coalition. But that independence has been limited and certainly unpredictable. Justice Kennedy's subsequent years on the Court have been somewhat more moderate; but he voted with Scalia and Rehnquist on Florida election issues.
Bibliography
Anne Gearson , “SC Justice Kennedy Says Prison Terms Too Long”, summary of Kennedy's address to the American Bar Association, Ventura (California) Star (10 Aug. 2003), p. A4.
Jerry Goldman , Anthony Kennedy, OYEZ Project of Northwestern University (2001).
Jerry Goldman , Anthony Kennedy, Supreme Court Historical Society (2003).
Jerry Goldman , Justice Anthony Kennedy, in Supreme Court Justices (2003). Kennedy Discusses Sentencing, Foundations of Freedom, The Third Branch 35, no. 9 (September 2003).
John R. Schmidhauser
