Through The Legal Looking Glass--The Nine Gray Eminences

Associate Justice Anthony McLeod Kennedy was born on July 23, 1936. I chose him very scientifically for my next Supreme Court biography of current Justices because he and I share a birthday. Although he was born eight years before me, I can still enjoy knowing that at least one Supreme Court Justice and I have ice cream and cake on the same day of the year.

Unlike me, though, Justice Kennedy is a native Californian. He is the son of a prominent Republican politically active family, and his father was a respected Sacramento attorney. As a young man, he was surrounded by famous legal personages, including the former California Attorney General and by-then California Governor Earl Warren. He served as a state senate page on three separate occasions as a teenager. After graduating from Sacramento C. K. McClatchy High School in 1954 (the year that Warren's Court decided Brown v Board of Education of Topeka, Kansas), he went on to earn his bachelor's degree in political science from Stanford University in 1958. At the time, Stanford was still a relatively conservative school for the rich and politically-prominent. He completed his senior year at the London School of Economics, which probably had a more direct effect on his legal philosophy than his three-year stay on The Farm (as Stanford is affectionately known by its alumni). He then entered Harvard Law, graduating with an LL.B in 1961 (law school graduates still received only a bachelor's degree in those days, but that's a story for another column).

Kennedy practiced law in San Francisco from 1961 through 1963, at which time he returned to Sacramento to take over his father's practice after his father's death. In 1964, College of the Pacific was accredited as a university, and opened a law school. In 1965 he joined the faculty of the University of the Pacific (located in nearby Stockton) as a professor of Constitutional law at the school's McGeorge Law School campus in Sacramento, and continues to teach students to this day. However, he does so at the University's European summer sessions in Salzburg, Austria. Some analysts of Kennedy's opinions believe that these sessions may play a major part in Kennedy's frequent invocation of foreign law in American decisions.

Kennedy never served as a California judge, but he was very active on the State's Judicial Commissions for many years, as well as several federal Judicial Commissions. He was appointed as an Associate Justice of the Ninth Circuit Court of Appeals by President Gerald Ford in 1975 upon the recommendation of California Governor Ronald Reagan.

Governor Reagan had a high opinion of Kennedy, although he had some reservations about Kennedy's eagerness to take appellate cases that had previously been considered political matters not belonging in a judicial forum. Kennedy had also shown a predisposition to agree with the Warren Court's discovery of umbras, penumbras and emanations in the United States Constitution which former Courts had never noticed before. Kennedy had taken a strong position in favor of the holding in Griswold v. Connecticut, the Warren Court case which discovered the previously unknown Constitutional "right of privacy" so ignobly advanced in the later case of Roe v. Wade. Kennedy took a great deal of heat from conservatives and abortion opponents for supporting the Roe decision, but he did so because he believed in consistency of opinion rather than any empathy for abortion.

The worst that can be said about Kennedy from a conservative's point of view is that he has an overly-developed sense of "judicial supremacy" in disputes with the other two branches of government which has led him into judicial opinions he might not otherwise have held had he developed a stronger sense of judicial restraint. But I will say that from my own very conservative point of view, Kennedy has never been a true "judicial activist." He has never shown signs of openly favoring legislation from the bench. Although he favors the "wisdom of the Court" to that of the political branches, he has never relished direct confrontation, and prefers to find a middle ground. As a result, he was often the swing vote on the Ninth Circuit Court and later, on the Supreme Court.

In 1988, after two stinging Supreme Court judicial nominee rejections in the Senate, now President Reagan nominated Kennedy. Reagan saw some "imperial" tendencies in Kennedy, but also shared many of Kennedy's more libertarian political views. Robert Bork was extremely vocal in his views despising judicial activism and willingness to prefer two hundred years of precedent to ten or fifteen years of precedent. That was simply too much, so Ted Kennedy launched a vicious campaign against him, which was untrue and unrelated to the qualifications for judicial office. The Kennedy campaign was so nasty that the expression "to Bork" came into the vernacular to describe personal character assassination in place of judicial inquiry.

Although he was not as vocal as Bork about his conservative judicial views, second nominee Douglas Ginsburg got Borked anyway. And then, in a twist of fate that Bill Clinton and Barack Obama have probably chuckled over many times, it was discovered that Ginsburg had smoked marijuana in his earlier years. That brought out the faux indignation of the leftists, but also lost him his support among conservatives in the Republican Party. For his third try, President Reagan decided that Kennedy's squeaky-clean life combined with his relatively moderate social views would produce a nominee that the Democrats simply couldn't attack, particularly after two all-out assaults in a row.

As hoped, Kennedy was largely moderate/conservative in his opinions, and has remained so throughout his tenure. On the other hand, as a compromiser and swing voter, he has never truly developed a strong judicial persona of his own, leaving him prone to joining occasionally in very strong opinions which don't really fit into his own judicial thinking. He has joined in every opinion which reasserts freedom of religion in the public forum so long as the religion expressed was not a clear extension of the arm of the state. He is regularly on the majority side in abortion cases which allow the states to regulate abortion practices, and openly and firmly opposes "partial birth abortion." But he has been led down the primrose path on the issue by Justices with stronger doctrinaire opinions and strong judicial personas.

He expressed a worrisome re-reading of the Constitution in many of the Warren Court decisions, and spoke highly of the Miranda decision. For this reason, President Reagan was concerned about Kennedy advocating consistent new-found rights for criminals. Instead, Kennedy has taken consistently strong law and order stands, and has fought the Court's tendency to keep expanding Fourth Amendment search and seizure hyper-sensitivity. He finds affirmative action to be largely bogus, and has expressed his view that it perpetuates racial stereotypes. And he is willing to apply the Miller-Roth test to pornography, most often coming down on the side of prosecutors. He took considerable flak for voting to invalidate Congressional legislation attempting to forbid "virtual" child pornography. But it was strictly on First Amendment free speech grounds, which he strongly advocates, and not out of any love for protection of child pornographers. And he had good company--conservative Justice Scalia wrote the majority opinion striking down the law on the basis of free speech since no real children were used in the pornography.

As somewhat of a libertarian, Kennedy has frequently disappointed conservative opponents of gay rights. He has based his opinions on his previously held beliefs about the right of privacy, but more importantly on social changes which leave adults to choose what they do in private so long as it is consensual and nobody is physically harmed. On the other hand, he has also been consistent in his oppositon to rules which support such "gay rights" as anti-discrimination and "hate" crimes laws. Most notably, he voted with the majority to uphold the right of the Boy Scouts of America as a private organization to ban homosexuals from becoming scout leaders (Boy Scouts of America v. Dale, 2000). Yet oddly, with his libertarian tendencies, Kennedy also joined the majority in upholding Congress's right to enact nationwide legislation prohibiting the use of medical marijuana. And it was a double-oddity, since he generally supports the rights of states to make health decisions independent of the federal government.

Kennedy has tended to show judicial activist leanings in cases involving the death penalty, occasionally citing, to conservative scholars' dismay, foreign rulings and lofty philosophical arguments about the sanctity of life. He also opposes the death penalty for all but clear cases of intentional murder with special circumstances. Thus, he invited even more conservative anger when he wrote the majority opinion in the 2008 case of Kennedy v. Lousiana, striking Louisiana's death penalty for child rapists since it punishes a non-capital crime with the death penalty when the death of the child was "not intended." Likewise, he voted to strike Virginia's law (and by extension all state laws) which provided the death penalty for the mentally deficient and minors at the time of the commission of the crime. Yet in Kansas v. Marsh he refused to consider an outright ban on the death penalty.

Again, as a study in contrasts, he wrote the majority opinion in Boumediene v. Bush (2008) finding habeas corpus rights for wartime detainees which had previously been denied throughout all of Supreme Court history. Yet in District of Columbia v. Heller (also 2008) he voted with the majority which for the first time clearly declared the Second Amendment right "to keep and bear arms" to be an individual right rather than a right granted only to militias.

For as long as he chooses to remain on the Court, and health permitting, Kennedy will most likely continue to be a swing vote. There are those among the conservative legal scholars who believe that with the retirement of David Souter and his replacement with a highly-political but second-rate intellect, the arguments which Souter strongly advanced to obtain a "plurality" decision upholding Roe in Planned Parenthood v. Casey (1992) will fade (see my Nine Gray Eminences discussion of August 4: David Souter). So there is the possibility Kennedy's vote may swing more consistently toward the arguments of the more senior and conservative Justices such as Scalia and Thomas, and be persuaded by the newer but highly articulate and learned Chief Justice Roberts and Justice Alito. If her track record holds up, it is unlikely that Sotomayor could convince Kennedy of much of anything, and she's more likely to anger him to the point that he is willing to make the move he nearly made in the Casey case and strike Roe v. Wade.