Anthony McLeod Kennedy (born July 23, 1936) is an
Associate JusticeAssociate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
of the
United States Supreme CourtThe Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
, having been appointed by President
Ronald ReaganRonald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
in 1988. Since the retirement of
Sandra Day O'ConnorSandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
, Kennedy has often been the
swing voteSwing vote is a term used to describe a vote that may go 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...
on many of the Court's politically charged 5–4 decisions. Conservatives have felt betrayed by some of his decisions, but other observers say he reaches conservative results more often than not.
Personal history
Kennedy was born and raised in
Sacramento, CaliforniaSacramento is the capital city of the U.S. state of California and the county seat of Sacramento County. It is located at the confluence of the Sacramento River and the American River in the northern portion of California's expansive Central Valley. With a population of 466,488 at the 2010 census,...
, the son of Anthony J. Kennedy, an attorney with a reputation for influence in the California legislature, and Gladys 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 later U.S. Chief Justice
Earl WarrenEarl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
. He served as a page in the California State Senate as a young man. He is not a member of the
Kennedy political familyIn the United States, the phrase Kennedy family commonly refers to the family descending from the marriage of the Irish-Americans Joseph P. Kennedy, Sr. and Rose Elizabeth Fitzgerald that was prominent in American politics and government. Their political involvement has revolved around the...
.
Kennedy graduated from
C. K. McClatchy High SchoolC.K. McClatchy High School is a Sacramento City Unified School District High School. It is located in the Land Park area of Sacramento, California, USA . McClatchy High School is also the second-oldest high school in Sacramento, having been established in 1937. It is currently the oldest high...
in 1954. He was an undergraduate student at
Stanford UniversityThe Leland Stanford Junior University, commonly referred to as Stanford University or Stanford, is a private research university on an campus located near Palo Alto, California. It is situated in the northwestern Santa Clara Valley on the San Francisco Peninsula, approximately northwest of San...
from 1954–58, graduating with a B.A. in
Political SciencePolitical Science is a social science discipline concerned with the study of the state, government and politics. Aristotle defined it as the study of the state. It deals extensively with the theory and practice of politics, and the analysis of political systems and political behavior...
, after spending his senior year at the
London School of EconomicsThe London School of Economics and Political Science is a public research university specialised in the social sciences located in London, United Kingdom, and a constituent college of the federal University of London...
. He earned an
LL.BThe Bachelor of Laws is an undergraduate, or bachelor, degree in law originating in England and offered in most common law countries as the primary law degree...
from
Harvard Law SchoolHarvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
, graduating cum laude in 1961.
Kennedy was in private practice in San Francisco, from 1961 to 1963, then took over his father's practice in Sacramento from 1963 to 1975 following his father's death. From 1965 to 1988, he was a Professor of Constitutional Law at the
McGeorge School of LawUniversity of the Pacific, McGeorge School of Law is a private, ABA approved law school in the Oak Park neighborhood of the city of Sacramento, California. It is part of the University of the Pacific....
, University of the Pacific and currently continues teaching law students (including legal seminars during McGeorge's European summer sessions in Salzburg, Austria). He remains Pacific McGeorge's longest-serving active faculty member.
During Kennedy's time as a California law professor and attorney, he assisted then-California Governor
Ronald ReaganRonald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
with drafting a state tax proposal.
Kennedy has served in numerous positions during his career, including the
California Army National GuardThe California Army National Guard is the land force component of the California National Guard, one of the reserve component United States Army and is part of the United States National Guard. The California Army National Guard is composed of about 20,000 soldiers...
in 1961 and the board of the
Federal Judicial CenterThe Federal Judicial Center is the education and research agency of the United States federal courts. It was established by an Act of Congress in 1967, at the recommendation of the Judicial Conference of the United States....
from 1987–1988. He also served on two committees of the
Judicial Conference of the United StatesThe Judicial Conference of the United States, formerly known as 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 courts in 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.
On March 3, 1975, upon Reagan's recommendation,
PresidentThe President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
Gerald FordGerald Rudolph "Jerry" Ford, Jr. was the 38th President of the United States, serving from 1974 to 1977, and the 40th Vice President of the United States serving from 1973 to 1974...
nominated Kennedy to a seat on the
United States Court of Appeals for the Ninth CircuitThe United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
vacated by
Charles Merton MerrillCharles Merton Merrill was a United States federal judge.Born in Honolulu, Hawaii, Merrill received an A.B. from the University of California, Berkeley in 1928 and an LL.B. from Harvard Law School in 1931. He was in private practice in Reno, Nevada from 1931 to 1950...
. Kennedy was unanimously confirmed by the
United States SenateThe United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
on March 20, 1975, and received his commission on March 24, 1975.
Appointment
On November 30, 1987, Kennedy was nominated to the Supreme Court seat vacated by Lewis F. Powell, Jr., after Reagan's failed attempts at placing
Robert BorkRobert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
(formally rejected by the Senate) and Douglas Ginsburg (withdrew from consideration). Following Ginsburg's withdrawal for admitted marijuana use, Kennedy was subjected to a then unprecedentedly thorough investigation of his background, which he easily passed.
In a lower court dissent that Kennedy had written before coming to the Supreme Court, he criticized the police for bribing a child into showing them where the child's mother hid drugs, believing such conduct was offensive and destroyed the family; Kennedy wrote that "indifference to personal liberty is but the precursor of the state's hostility to it." However, Kennedy had written an article the year before about judicial restraint, and this excerpt was read aloud at his confirmation hearing:
One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system. Many argue that a just society grants a right to engage in homosexual conduct. If that view is accepted, the Bowers decision in effect says the State of Georgia has the right to make a wrong decision—wrong in the sense that it violates some people's views of rights in a just society. We can extend that slightly to say that Georgia's right to be wrong in matters not specifically controlled by the Constitution is a necessary component of its own political processes. Its citizens have the political liberty to direct the governmental process to make decisions that might be wrong in the ideal sense, subject to correction in the ordinary political process.
Kennedy said about
Griswold v. ConnecticutGriswold v. Connecticut, , was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives...
(a privacy case regarding 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.'" Ultimately, Kennedy gained more bipartisan support than Bork and Ginsburg. The United States Senate confirmed him on February 3, 1988, by a vote of 97 to 0. Kennedy received his
commissionLetters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...
on February 11, 1988.
Jurisprudence
Appointed by a
RepublicanThe Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
president, Kennedy’s tenure on the Court has seen him take a somewhat mixed ideological path; he looks at cases individually rather than adhering to any rigid ideology. As Kennedy told a reunion of his law clerks, "We always tried to get it right."
Georgetown University Law CenterGeorgetown University Law Center is the law school of Georgetown University, located in Washington, D.C.. Established in 1870, the Law Center offers J.D., LL.M., and S.J.D. degrees in law...
professor
Randy BarnettRandy E. Barnett is a lawyer, a law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and a legal theorist in the United States...
has described Kennedy's jurisprudence as "
libertarianLibertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
," although other legal scholars have disagreed.
Kennedy and
Sandra Day O'ConnorSandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
have been swing votes in many 5-4 and 6-3 decisions during the Rehnquist and Roberts Courts. On issues of religion, he holds to a less separationist reading of the Establishment Clause than did O'Connor, favoring a "Coercion Test" that he detailed in
County of Allegheny v. ACLUIn County of Allegheny v. ACLU, 492 U.S. 573 , the U.S. Supreme Court considered the constitutionality of two recurring holiday displays located on public property in downtown Pittsburgh. The first, a nativity scene , was placed on the grand staircase of the Allegheny County Courthouse...
.
Kennedy has supported adding substance to the "liberty" interest protected by the
Due ProcessDue process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
Clause of the
Fourteenth AmendmentThe Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
, 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 AmendmentThe Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
cases involving searches for illegal drugs, although there are some exceptions, such as his concurrence in
Ferguson v. City of CharlestonFerguson v. City of Charleston, , is a United States Supreme Court decision that found Medical University of South Carolina's policy regarding involuntary drug testing of pregnant women to violate the Fourth Amendment.-Facts:...
. 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 the 2002 decision, Ashcroft v. ACLU.
Abortion
In
Hodgson v. MinnesotaHodgson v. Minnesota, 497 U.S. 417 , was a United States Supreme Court abortion rights case that dealt with whether a state law may require notification of both parents before a minor can obtain an abortion. The law in question provided a judicial alternative.-Issue:The case concerned a Minnesota law...
(1990), Kennedy upheld a restriction on abortion for minors requiring both parents to be notified about the procedure.
In 1992, he joined O'Connor's
plurality opinionA plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but received more support than any other...
in
Planned Parenthood v. CaseyPlanned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 was a case decided by the Supreme Court of the United States in which the constitutionality of several Pennsylvania state regulations regarding abortion were challenged...
(1992), which reaffirmed in principle (though without many details) the
Roe v. WadeRoe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
decision recognizing the right to abortion under the
Due ProcessDue process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
Clause of the
Fourteenth AmendmentThe Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
. The plurality opinion, signed jointly by three justices appointed by
Ronald ReaganRonald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
and George H.W. Bush, ignited a firestorm of criticism from conservatives. Kennedy had stated at least as early as 1989 that to uphold precedent he might not overrule Roe. At the same time, Kennedy reportedly had considered overturning Roe, according to court insiders, but in the end decided to uphold restrictions without overturning precedent.
In later abortion decisions, it became apparent that Kennedy thought Casey had narrowed Roe and allowed more restrictions. Because of a changed composition on the Court under President Clinton, Kennedy was no longer the fifth vote to strike down abortion restrictions. Thus, O'Connor became the justice who defined the meaning of Casey in subsequent cases while Kennedy was relegated to dissents in trying to explain what he thought Casey meant. For example, Kennedy dissented in the 2000 decision of
Stenberg v. CarhartStenberg v. Carhart, 530 U.S. 914 , is a case heard by the Supreme Court of the United States dealing with a Nebraska law which made performing partial-birth abortion illegal, except where necessary to save the life of the mother. Nebraska physicians who performed the procedure contrary to the law...
, which struck down laws criminalizing partial-birth abortion.
After the judicial appointments of President George W. Bush, Kennedy again became the needed fifth vote to strike down abortion restrictions. Since Kennedy's conception of abortion rights is more narrow than O'Connor's, this has led to a slightly more lenient review of abortion restrictions since 2006. Kennedy wrote the majority opinion in 2007's
Gonzales v. CarhartGonzales v. Carhart, 550 U.S. 124 , is a United States Supreme Court case that upheld the Partial-Birth Abortion Ban Act of 2003. The case reached the high court after U.S. Attorney General Alberto Gonzales appealed a ruling of the United States Court of Appeals for the Eighth Circuit in favor of...
, which held that a federal law criminalizing partial-birth abortion did not violate Casey because it did not impose an "undue burden." The decision did not expressly overrule Stenberg, although many commentators saw it having that effect.
Gay rights and homosexuality
Kennedy's concept of "liberty" has included some protections for sexual orientation. He wrote the Court's opinion in the 1996 case,
Romer v. EvansRomer v. Evans, 517 U.S. 620 , is a landmark United States Supreme Court case dealing with civil rights and state laws. It was the first Supreme Court case to deal with LGBT rights since Bowers v...
, invalidating a provision in the Colorado Constitution denying homosexuals the right to bring local discrimination claims. In 2003, he authored the Court's opinion in
Lawrence v. TexasLawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
, which invalidated criminal prohibitions against homosexual
sodomySodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...
under the
Due ProcessDue process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
Clause of the
United States ConstitutionThe Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, overturning the Court's previous ruling in 1986's
Bowers v. HardwickBowers v. Hardwick, , is a United States Supreme Court decision that upheld, in a 5-4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. Seventeen years after Bowers v. Hardwick, the Supreme Court...
. In both cases, he sided with the more
liberalIn politics, Left, left-wing and leftist generally refer to support for social change to create a more egalitarian society...
members of the Court. Lawrence also controversially referred to foreign laws, specifically ones enacted by the
Parliament of the United KingdomThe Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
and the
European Court of Human RightsThe European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
, in partly justifying its result.
Kennedy voted, with four other Justices, to uphold the
Boy Scouts of AmericaThe Boy Scouts of America is one of the largest youth organizations in the United States, with over 4.5 million youth members in its age-related divisions...
's organizational right to ban homosexuals from being scoutmasters in
Boy Scouts of America v. DaleBoy Scouts of America et al. v. Dale, , was a case of the Supreme Court of the United States overturning the New Jersey Supreme Court's application of the New Jersey public accommodations law, which had forced the Boy Scouts of America to readmit assistant Scoutmaster James Dale...
in 2000.
On October 19, 2009, Kennedy temporarily blocked Washington state officials from releasing the names of people who signed petitions for a referendum ballot measure that would repeal a gay rights domestic partnership law but joined the subsequent majority decision in
Doe v. ReedDoe v. Reed, 561 U.S. ___ , is a United States Supreme Court case which holds that the disclosure of signatures on a referendum does not violate the First Amendment to the United States Constitution.-Background:...
that the Washington law permitting signature release was constitutional, but remanding the matter to the lower court to determine whether the release of this particular petition's signatures was constitutional.
In the 2010 case
Christian Legal Society v. MartinezChristian Legal Society v. Martinez, 561 U.S. ___, 130 S.Ct. 2971, 177 L.Ed.2d 838 , is a June 28, 2010, decision by the United States Supreme Court...
, 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 LawUniversity of California, Hastings College of the Law is a public law school in San Francisco, California, located in the Civic Center neighborhood....
refused to grant the exemption. The Court found that Hastings' policy was reasonable and viewpoint neutral. Kennedy wrote a concurrence joining the majority.
Capital punishment
Kennedy has shown an open mind with regard to capital punishment, upholding it in specific cases, voting to restrict the right of unlimited habeas review by federal courts, while voting to restrict the use of the death penalty with regard to minors and the mentally ill. With the Court's majority in
Atkins v. VirginiaAtkins v. Virginia, , is a case in which the Supreme Court of the United States ruled 6-3 that executing the mentally retarded violates the Eighth Amendment's ban on cruel and unusual punishments.-The case:...
and
Roper v. SimmonsRoper v. Simmons, was a 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 overruled the Court's prior ruling upholding such sentences on offenders above or at the...
, he voted to hold unconstitutional the execution of the mentally ill and those under 18 at the time of the crime. However, in
Kansas v. MarshKansas v. Marsh, 548 U.S. 163 , is a case decided by the United States Supreme Court. The Court held that a Kansas death penalty statute was consistent with the U.S...
, he declined to join the dissent, which questioned the overall "soundness" of the existing capital punishment system.
On June 25, 2008, Kennedy authored the 5-4 majority opinion in
Kennedy v. LouisianaKennedy v. Louisiana, 554 U.S. 407 was a landmark decision by the Supreme Court of the United States that held that the Eighth Amendment's Cruel and Unusual Punishment Clause did not permit a state to punish the crime of rape of a child with the death penalty; more broadly, the power of the state...
. The opinion, which was joined by the court's four more liberal judges, held that "[t]he
Eighth AmendmentThe Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
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, "The court concludes that there is a distinction between intentional first-degree murder, on the one hand, and non-homicide crimes against individuals, 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 compare 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."
Gun control
On June 26, 2008, Kennedy joined the majority in
District of Columbia v. HellerDistrict of Columbia v. Heller, 554 U.S. 570 , was a landmark case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for traditionally lawful purposes in federal enclaves, such as...
, which struck down the ban on handguns in the District of Columbia. At issue was whether Washington, D.C.'s ban violated the right to "keep and bear arms" by preventing individuals—as opposed to state militias—from having guns in their homes. Kennedy sided with the conservative side of the Court, holding that the
Second AmendmentThe Second Amendment to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.In 2008 and 2010, the Supreme Court issued two Second...
conferred an individual right to keep and bear arms. (The decision came the day after the Court's ruling in
Kennedy v. LouisianaKennedy v. Louisiana, 554 U.S. 407 was a landmark decision by the Supreme Court of the United States that held that the Eighth Amendment's Cruel and Unusual Punishment Clause did not permit a state to punish the crime of rape of a child with the death penalty; more broadly, the power of the state...
, a capital punishment decision authored by Kennedy, in which he sided with the liberal justices.) Kennedy similarly voted to extend Hellers holding to the states in
McDonald v. ChicagoMcDonald v. Chicago, 561 U.S. 3025, 130 S.Ct. 3020 , was a landmark decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states...
, which was filed on June 28, 2010.
The environment
Kennedy authored the majority decision in Coeur Alaska 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,” 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 “[t]he use of any river, lake, stream or ocean as a waste treatment system,” Kennedy’s decision states 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 states that such a reading of federal law “strains credulity” because it allows “[w]hole categories of regulated industries” to “gain immunity from a variety of pollution-control standards.”
Habeas corpus
On June 12, 2008, Kennedy wrote the 5-4 majority opinion in
Boumediene v. BushBoumediene v. Bush, 553 U.S. 723 , was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba...
. The case challenged the legality of Boumediene’s detention at the Guantanamo Bay military base as well as the constitutionality of the
Military Commissions Act (MCA) of 2006The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
. Kennedy was joined by the four more liberal judges in finding that the constitutionally guaranteed right of
habeas corpus is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
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 TribunalThe Combatant Status Review Tribunals 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 established July 7, 2004 by order of U.S. Deputy Secretary of Defense...
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 (7) of the MCA but left intact the Detainee Treatment Act.
In a concurring opinion, Justice
SouterDavid Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
stressed the fact that the prisoners involved have been imprisoned for as many as six years.
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. JohnsonTexas v. Johnson, , was an important decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant's act of flag burning was...
(1989). In his concurrence, Kennedy wrote, "It is poignant but fundamental that the flag protects those who hold it in contempt."
Kennedy has joined with Court majorities in decisions favoring
states' rightsStates' rights in U.S. politics refers to political powers reserved for the U.S. state governments rather than the federal government. It is often considered a loaded term because of its use in opposition to federally mandated racial desegregation...
and invalidating federal and state
affirmative actionAffirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
programs. He ruled with the majority on Equal Protection grounds in the controversial 2000
Bush v. GoreBush v. Gore, , is the landmark United States Supreme Court decision on December 12, 2000, that effectively resolved the 2000 presidential election in favor of George W. Bush. Only eight days earlier, the United States Supreme Court had unanimously decided the closely related case of Bush v...
case that halted continuing recounts in the 2000 presidential election and ended the legal challenge to the election of President George Bush.
In the 2005
Gonzales v. RaichGonzales v. Raich , 545 U.S. 1 , was a decision by the United States Supreme Court ruling that under the Commerce Clause of the United States Constitution, the United States Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal...
case, he joined the liberal members of the Court (along with conservative Justice Scalia) in permitting the federal government to prohibit the use of medical marijuana, even in states where it is legal. Several weeks later, in the controversial case of
Kelo v. City of New LondonKelo v. City of New London, 545 U.S. 469 was a case decided by the Supreme Court of the United States involving the use of eminent domain to transfer land from one private owner to another to further economic development...
(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 authored 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.
Analysis of Supreme Court tenure
Kennedy has reliably 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.
According to legal writer
Jeffrey ToobinJeffrey Ross Toobin is an American lawyer, author, and legal analyst for CNN and The New Yorker.-Early life and education:...
, starting in 2003, Kennedy also 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. Especially after 2005, when
Sandra Day O'ConnorSandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
, who had previously been known as the court's "swing vote", retired, Kennedy began to get that title for himself. Kennedy is more conservative than former Justice O'Connor was on issues of race, religion, and abortion, and intensely dislikes being labeled a "swing vote".
On the Roberts Court, Kennedy often decides the outcome of a case. 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, 5.
Conservative criticism
According to legal reporter
Jan Crawford GreenburgJan Crawford, formerly known as Jan Crawford Greenburg, is a television journalist, author, and lawyer. She currently serves as both the political correspondent and chief legal correspondent for CBS News and appears regularly on the CBS Evening News, Face the Nation, Early Show, and CBS News Sunday...
, Kennedy attracts the ire of conservatives when he does not vote with his more rightist colleagues. According to legal analyst Jeffrey Toobin, conservatives view Kennedy's pro-gay-rights and pro-choice rulings as betrayals. According to Greenburg, 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 should not be applied to juveniles or the mentally challenged).
A short 2008 law review article by retired lawyer Douglas M. Parker in the legal journal The Green Bag charged that much of the criticism of Kennedy was based upon "pop psychology," rather than careful analysis of his opinions.
Outside activities
Kennedy has been active off the bench as well, calling for reform of overcrowded
American prisonsIncarceration in the United States is one of the main forms of punishment and/or rehabilitation for the commission of felony and other offenses. The United States has the highest documented incarceration rate in the world. At year-end 2009 it was 743 adults incarcerated per 100,000...
in a speech before the
American Bar AssociationThe American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
. He spends his summers in
Salzburg-Population development:In 1935, the population significantly increased when Salzburg absorbed adjacent municipalities. After World War II, numerous refugees found a new home in the city. New residential space was created for American soldiers of the postwar Occupation, and could be used for...
, Austria, where he teaches international and American law at the University of Salzburg for the
McGeorge School of LawUniversity of the Pacific, McGeorge School of Law is a private, ABA approved law school in the Oak Park neighborhood of the city of Sacramento, California. It is part of the University of the Pacific....
international program and often attends the large yearly international judges conference held there. Defending his use of international law, in 2005 Kennedy told
The New YorkerThe New Yorker is an American magazine of reportage, commentary, criticism, essays, fiction, satire, cartoons and poetry published by Condé Nast...
's staff writer Jeffrey 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.”
Kennedy is one of thirteen Catholic justices – of whom six sit on the Court as of the 2010–2011 term – out of 111 justices in total in the history of the Supreme Court.
See also
Further reading
- Colucci, Frank J. Justice Kennedy's Jurisprudence: The Full and Necessary Meaning of Liberty (University Press of Kansas, 2009)243 pp.ISBN 978-0-7006-1662-6 online review
- Knowles, Helen J. The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty (Rowman & Littlefield, 2009) isbn-0742562573
- Toobin, Jeffrey. "Swing Shift: How Anthony Kennedy’s passion for foreign law could change the Supreme Court," The New Yorker (2005). online
- 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
External links
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