U.S. Supreme Court Justice Anthony M. Kennedy (born 1936) was appointed by Ronald Reagan in 1988. His votes generally tipped the balance in favor of conservative decisions.
Anthony M. Kennedy, who was named to the United States Supreme Court after President Ronald Reagan's first two nominations for Justice Lewis Powell's seat were unsuccessful, was born on July 23, 1936, in Sacramento, California. He reportedly experienced a remarkably trouble-free boyhood that included regular service as an altar boy at his Roman Catholic parish church. In fact, Kennedy used to joke with his young friends that his father in a fit of affectionate despair had offered to pay him $100 if just once he would do something requiring his parents to come pick him up at the local police station! The youngster never collected on the dare.
An honor roll student at McClatchy High School in Sacramento, Kennedy always assumed that he would attend Stanford University like his mother and become a lawyer like his father. Indeed, Kennedy was to follow in his parents' footsteps. As an undergraduate, the future justice continued his outstanding academic career. He was particularly captivated by constitutional law, and his professor for that class described him as "brilliant." Kennedy completed his graduation requirements in three years, but his father apparently thought his son was too young to enroll immediately in law school, so young Kennedy spent a year at the London School of Economics. Upon his return in 1958, he received his B.A. degree from Stanford, where he was elected to Phi Beta Kappa. He then attended Harvard Law School, from which he obtained his LL.B. degree, cum laude, in 1961.
Kennedy began his practice of law in the prestigious San Francisco firm of Thelen, Marrin, John & Bridges, but within two years he was back in Sacramento to assume the law practice of his father, who had died suddenly of a heart attack in 1963. Described as an "intellectual," Kennedy seemingly disliked the flesh-pressing required of lobbying work in the state capital. Eventually, he found an outlet for his more academic interest in the law when the dean of the McGeorge School of Law of the University of the Pacific offered him a part-time teaching position. Just as in his student days, he thrived in the classroom and would often amaze his own students by lecturing for three hours on constitutional law without referring to a note.
Like his father before him, Kennedy was a Republican, if not a particularly active one. Nevertheless, in the early 1970s he was asked to serve on a commission to draft a tax-limitation initiative known as Proposition 1 for Ronald Reagan, then the governor of California. Although the ballot proposition failed in 1973, Kennedy had impressed the Reagan camp with his constitutional expertise. When an opening became available on the U.S. Court of Appeals for the Ninth Circuit in 1975, President Gerald Ford was persuaded to appoint Kennedy to the circuit bench, making the 38-year-old Californian one of the youngest appellate justices in the nation's history.
Significantly for the ideological fallout over the abortive nomination of Judge Robert Bork in 1987, Kennedy was described as a moderate conservative cast in the Gerald Ford, rather than in the Barry Goldwater, mold. Liberals were quick to label Kennedy "open-minded" in contrast to the "reactionary" Bork. Yet the more accurate picture of Kennedy's ideology in contrast to Bork's was not that it was less conservative but that it was virtually unidentifiable. The 430 opinions that Kennedy had drafted in his tenure on the Ninth Circuit did not reveal a clear jurisprudential posture on such controversial issues as civil rights, women's rights, and the issue which was Bork's downfall, the right to privacy. Unlike Bork's academic penchant for writing and speaking, Kennedy had left no paper trail of law review articles and speeches.
Thus, Kennedy's personal integrity, his judicial experience, and his less dogmatic ideology made him the perfect candidate to fill Justice Powell's "swing" seat on the Supreme Court after the turmoil surrounding the Senate's defeat of Bork in October 1987 and the withdrawal of Judge Douglas Ginsburg's nomination several weeks later when it was disclosed that he had used marijuana both as a student and as a law professor. After a seven-month ordeal to fill the Court's ninth seat, the Senate voted unanimously (97:0) on February 3, 1988, to confirm the Kennedy nomination. At the age of 51, Kennedy became the Court's youngest member.
Kennedy's early years on the high court by no means offered a definitive portrait of his Supreme Court jurisprudence, but his initial votes and opinions began to reveal identifiable trends. As occupied by Justice Kennedy, the Court's swing seat, which Justice Powell had captured for the moderate center, no longer functioned as a vote that balanced the liberal and conservative blocs by siding with one or the other from case to case. Instead, Kennedy's vote became a tie-breaker that consistently tipped the balance in favor of the conservatives.
In the abortion realm, for example, Kennedy voted with the 5:4 majority to allow states the right to impose substantial new restrictions on abortion (Webster v. Reproductive Health Services ). Kennedy also arrived at a conservative result on the matter of the right to privacy vis-à-vis the drug-testing issue. In Skinner v. Railway Labor Executives (1989) and National Treasury Employees v. Von Raab (1989), he wrote both majority opinions for the Court's constitutional sanction of the federal government's efforts to create a drug-free workplace.
It is in the area of affirmative action, however, that Justice Kennedy's vote began to distinguish him most fundamentally from Justice Powell. In early 1989 Kennedy voted with the 6:3 majority in invalidating a localset-aside law in Richmond, Virginia, that channeled 30 percent of public works funds to minority-owned construction companies (City of Richmondv. J.A. Croson Co.). He also cast his vote with the narrow 5:4 majority that ruled that court-approved affirmative action settlements may subsequently be challenged by disappointed white workers (Martin v. Wilks ). The Court reached an equally conservative result, with Kennedy casting a fifth vote for the majority, in Wards Cove Packing v. Atonio (1989), which ruled that employee discrimination claims based on a statistical showing of underutilization of women or minorities must prove that the policies they are challenging cannot be justified as necessary to the employer's business.
Kennedy's most notable contribution to the Court's more conservative tack in employment discrimination cases was his majority opinion in Patterson v. McLean Credit Union (1989), which upheld the use of the 1866 Civil Rights Act for claims of discrimination at the initial hiring stage, but barred use of the statute for claims of on-the-job bias.
In church-state matters Kennedy revealed an accommodationist stance, particularly in simultaneous rulings on Christmas-season displays sponsored by city and county governments in Pittsburgh. He dissented from a decision declaring that a Nativity scene, unaccompanied by any more secular symbols of the season, amounted to an unconstitutional endorsement of the Christian faith. He found himself in the majority, however, when the Court permitted a Hanukkah menorah to be displayed next to a Christmas tree (Allegheny County v. Greater Pittsburgh A.C.L.U. ).
Another First Amendment case, this time in the free speech realm, found Kennedy uncharacteristically joining in a liberal decision which declared that burning the American flag as a political protest is a form of protected symbolic speech (Texas v. Johnson ). Despite his vote in the controversial flag-burning case, Kennedy seemed to be clinging to a cautious conservatism bolstered by a professed adherence to judicial restraint.
According to the New Yorker (November 11, 1996), "Kennedy has disappointed conservatives by upholding liberal precedents on the crucial social issues of abortion, flag-burning, gay rights and school prayer.." A writer for (n□"1"]Washingtonian December 1996) magazine noted that Kennedy and fellow justice Sandra Day O'Connor have become an "important tandem" because of their unpredictability. A critic retorted that Kennedy and O'Connor "should really be thrown to the alligators." (National Review June 17, 1996). But others state he is doing what he was appointed to do, as "he refuses to impose his personal views on the nation." (New Yorker November 11, 1996).
Kennedy married Mary Davis on June 29, 1963, and was the father of two sons and a daughter.
A short biographical sketch may be found in the Congressional Quarterly Guide to the U.S. Supreme Court, 2d edition (1990). An informative analysis of Kennedy also appeared in the New York Times (November 12, 1987). The Senate Judiciary Committee's report of the hearings on Kennedy's Supreme Court nomination provided a wealth of material (100th Cong., 1st sess.).
See also New Republic (June 10, 1996); National Review (June 17, 1996); New Yorker (November 11, 1996); Washingtonian (December 1996); and U.S. News & World Report (July 7, 1997). □