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Justice Kennedy Retires from Supreme Court

The following is a guest post by Elizabeth Osborne, legal reference librarian.

On July 31, 2018, Justice Anthony M. Kennedy is retiring from the United States Supreme Court at age 82, after over 30 years on the bench.

Kennedy was born in Sacramento, California, in 1936, to parents Anthony J., an attorney and lobbyist, and Gladys (née McLeod), a teacher.   Kennedy’s parents were active in local and state politics and fostered his early interest in government by allowing him, at age 10, to spend a year serving as a page in the California State Senate.  He graduated from McClatchy High School in 1954 and pursued a Bachelor of Arts in political science at Stanford University, graduating in 1958 after spending his senior year abroad at the London School of Economics.  He then attended Harvard Law School, graduating cum laude in 1961.  After spending a year in the California Army National Guard, Kennedy passed the California bar examination in 1962 and shortly thereafter took over his father’s law practice.

Between 1963 and 1975, Kennedy worked in private practice and as a lobbyist for the Republican Party in California.  Through his political and professional associations, Kennedy was recruited to work on then-Governor Ronald Reagan’s ballot initiative to reduce state spending.  Although the proposition ultimately failed, Kennedy impressed Reagan so that in 1975, Reagan recommended Kennedy to President Gerald Ford to fill a vacancy on the Ninth Circuit Court of Appeals.  Over a span of three weeks in March 1975, Kennedy was nominated by Ford, confirmed by the Senate, and seated on the Ninth Circuit.

Kennedy served on the Ninth Circuit for almost thirteen years.  In 1987, Reagan was halfway through his second term as President when a vacancy opened on the Supreme Court.  Reagan had Kennedy on his shortlist of nominees but nominated Robert H. Bork first.  Ultimately, the senate did not confirm Bork and Reagan’s second choice, Douglas H. Ginsburg, withdrew his name prior to Reagan’s official nomination.  On November 11, 1987, Reagan officially nominated Kennedy to fill the vacancy.  After three days of hearings before the Senate Judiciary Committee, Kennedy was confirmed in the Senate by a vote of 97-0 and was seated on the Supreme Court on February 18, 1988.

In his over thirty years on the Court, Kennedy’s jurisprudence has been difficult to nail down with a single descriptor.  Though originally nominated by Reagan as a presumed conservative addition to the Court, Kennedy would come to author a number of influential opinions that diverged from this reputation.  As the makeup of the court shifted over the years, Kennedy eventually became thought of as a “swing vote,” voting sometimes with his four conservative colleagues and sometimes with his four liberal colleagues in opinions that were split down the middle ideologically.  While Kennedy did author landmark decisions on the issues of abortion rights, gay rights, and the death penalty, his record shows that he predominantly voted with the conservative wing of the bench throughout his career.

In his majority decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), Kennedy was joined in a 5-4 decision by his more conservative colleagues in ruling that restrictions limiting a corporation’s funding of political speech were unconstitutional under the First Amendment.  Kennedy’s words on the importance of free speech are indicative of his longstanding interest in expressive freedoms

Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. (Citizens United, p. 339) (internal citation omitted).

Boumediene v. Bush, 553 U.S. 723 (2008), is one of Kennedy’s more notable opinions in which he was joined in a 5-4 decision by his more liberal colleagues.  In holding that aliens designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba, were entitled to the constitutional protections of habeas corpus, Kennedy wrote

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. (Boumediene, p. 797).

One of Kennedy’s more memorable passages comes from his decision in Obergefell v. Hodges, 135 S.Ct. 2584 (2015), in which the Court held that the Fourteenth Amendment guarantees the right to marriage to same-sex couples in the same manner as opposite-sex couples.  On marriage, Kennedy asserted

 No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. (Obergefell, 2608).

Kennedy has a passion for teaching that has persisted throughout his career.  In 1965, Kennedy began teaching constitutional law at University of the Pacific’s McGeorge School of Law.  He taught as a member of the faculty for more than twenty years and delivered his lectures without the use of notes.  Even today, Kennedy continues to lecture on topics in constitutional law at McGeorge’s annual summer session in Salzburg, Austria.

Kennedy is known for his polite demeanor and is well respected by his colleagues on the bench. He is a Shakespeare aficionado and has even, from time-to-time, presided as “justice” over The Trial of Hamlet, a mock-trial theater performance with the Shakespeare Theater Company.

Bibliography:

Anthony D. Bartl.  The Constitutional Principles of Justice Kennedy: A Jurisprudence of Liberty and Equality (2014),

Frank J. Colucci.  Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty (2009),

Helen J. Knowles.  The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty (2009) .

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