Justice Anthony Kennedy (Born 1936) – Guest Essayist: Tony Williams

Republican President Dwight Eisenhower reputedly said that appointing Chief Justice Earl Warren and Justice William Brennan were among his biggest mistakes as president as they helped usher in a wave of liberal jurisprudence at odds with Eisenhower’s conservative philosophy.  Republican President George H.W. Bush might have said the same about Justice David Souter for the same reasons.  Finally, Republican President Ronald Reagan would have agreed that Justice Anthony Kennedy surprisingly became a swing vote who could lean left.

Kennedy was born in California in 1936, and attended Stanford University and the London School of Economics before graduating from Harvard Law School.  He practiced law and served as a law professor because being appointed to the bench—for the Ninth Circuit Court of Appeals—in 1975 by President Gerald Ford.

In 1987, Justice Lewis Powell retired from the Supreme Court.  President Reagan at first appointed Robert Bork to the vacant seat, but the Senate rejected Bork after highly controversial hearings.  Senate Democrats rejected his originalism and thought him too conservative, especially for what was likely to be a “swing vote” in important cases.  Reagan submitted Kennedy’s nomination, and he was quickly confirmed by the Senate.

Kennedy’s opinions are not notably steeped in a particularly strong ideology.  He often voted with conservative Chief Justice William Rehnquist during his tenure on the Court.  Kennedy wrote the majority opinion in Citizens’ United v. FEC (2010), protecting free political speech by corporations which many liberals criticized.  He also joined the majority in the contentious Bush v. Gore (2000) case in that presidential election.

On the other hand, Justice Kennedy has broken with what many consider to be conservative positions.  For example, he joined the majority opinion in Planned Parenthood v. Casey (1992), which affirmed the Roe v. Wade (1973) decision allowing abortions, even though Casey rejected the trimester system.  However, Kennedy has generally upheld restrictions on abortion and supported bans on late-term, partial-birth abortions.

Justice Kennedy has also been a supporter of gay rights and gay marriage in several Supreme Court cases.  He authored the Texas v. Johnson (2003) decision overturning state laws criminalizing homosexual acts.  In 2013, he wrote the majority opinion declaring the Defense of Marriage Act (DOMA) to be unconstitutional, and also wrote the opinion in Obergefell v. Hodges (2015) decision overturning bans on gay marriage in the United States.

Finally, Justice Kennedy joined with the liberal justices of the Supreme Court in ruling that local governments could seize private property for economic development in Kelo v. City of New London (2005).

The recent controversy involving Justice Kennedy is his possible impending retirement.  He will be 81 years old, and many Supreme Court observers are speculating about his retirement.  The issue is part of the polarized partisan debate because Republican President Donald Trump has already successfully placed one justice—Neil Gorsuch— on the Supreme Court.  The Supreme Court and its decisions have also generally become more politically-charged in the past five decades.  Kennedy’s retirement as the “unreliable” conservative swing vote to a more consistent conservative could alter the Court’s jurisprudence on several important and controversial issues.

Whatever the respective ideological views of Justice Anthony Kennedy, he has honorably served the Supreme Court and dedicated his life to public service for more than thirty years.

Tony Williams is a Constituting America Fellow and the author of five books including Washington & Hamilton: The Alliance that Forged America.

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