Supreme Court Review 2016/2017 TERM
SATURDAY, MAY 27, 2017

THE JUSTICES OF THE UNITED STATES SUPREME COURT

They are called "Justices" not "Judges" to differentiate themselves from lower court judges

Justice Kennedy is the court's most moderate vote and, therefore, its swing vote. Kennedy's judicial philosophy is at the intersection of the liberal court and conservative court; however, although he occasionally sides with the more liberal justices in close cases he is considered to be a member of the more conservative wing of the Court. Justice Kennedy was nominated to the bench by President Ronald Reagan and took office on February 18, 1988.

As the current court's swing vote, Justice Kennedy has decided many of the court's most controversial cases. Recently, Justice Kennedy provided the fifth vote in Florence v. Board of Chosen Freeholders of the County of Burlington where the majority held that jail strip searches prior to admission into the general prison population for a person convicted of a minor offense does not require reasonable suspicion. He also provided the fifth vote in: District of Columbia v. Heller, which struck down DC's ban on handguns, Citizens United v. FEC, which struck down portions of the McCain-Feingold Act that limited corporate funding of political broadcasts within 60 days of a general election or 30 days of a primary, and Boumediene v. Bush, a ruling that permitted terrorism suspects at Guantanamo Bay to have a right to challenge their detentions in federal courts. On the few occasions when Kennedy sides with the liberals on the court, he is assailed by conservatives. Kennedy receives such attention only because he is the swing justice and is regarded as more responsible for outcomes in controversial cases than the other justices. Justice Kennedy is not always the swing vote, however, and occassionally finds himself in the dissent even where the court largely divides along liberal and conservative lines (the recent Obamacare decision in National Federation of Independent Business v. Sebelius is an example).

Life Before the Court
Justice Kennedy was born on July 23, 1936, in Sacramento, California, to an upper-middle class family. He was the middle child in a household of three children. His father was a politically well-connected lawyer with ties to California's political elite. Justice Kennedy's mother maintained political connections as well by participating in civic activities. Kennedy's father had a rule that the table was to be set with a couple extra places each night for dinner because on any given night he might bring clients or friends home with him.

Given this rather social upbringing, however, Kennedy was not an especially social child. He was a scrawny kid and remembers that after school he would run home to read books. Because Kennedy was often at home, his father would take him on trips to attend trials in Northern California. Thanks to his father's influence, as a nine-year-old boy Kennedy worked as a page boy for the California State Senate,.

Kennedy remembers:

They made up a job for me at the state legislature. I was the only page boy the State Senate ever had. I was the page boy there for a number of years . . . I started in the fourth grade and did it through the eighth grade, so I was this young, little kid. It probably stunted my growth because of all the cigar smoke they had in those days. As a result, I knew Earl Warren very well, on a somewhat professional basis. Professional, as in I was a nine-year-old page boy and he was the Governor. We knew his children and played in the Governor's Mansion and so forth. I have a letter I've given to the Supreme Court Historical Society, in which he wrote and said, "You're going to go very far in government." I'm very proud of the fact that I knew well someone who later became the Chief Justice of the United States.

Kennedy said that there was no real choice what he was going to be in life. He was trained from childhood in the art of law and lobbying and even though he may have really wanted to be a doctor, the decision was made. During the summer Kennedy remembers:

I got jobs in the oil fields. My uncle was in the oil business, and so at the age of I think 14, I got my first job kind of cleaning up around the oil rig. And then, I learned how to do that, and I went to Montana, Canada, New Orleans. I worked on a drilling barge on the Gulf in the summer. You could make a lot of money in those days, by the standards of those days, in the oil fields, and so I saved that to help for my education, and I loved it. I think I maybe learned more in the oil fields than I did in the State Senate. I think there's a lot of wisdom in the working man and the working woman. I think they're very concerned with what the country is like, what their life should be like. And I think that taught me a lot, because I was the butt of many jokes when I was a little kid working with these high-powered people in the oil fields, and I had to learn to adjust to that and try to pull my own weight.

Kennedy attended Stanford University, graduating with a bachelor's of arts degree in political science. He spent his senior year at the London School of Economics. He then attended Harvard Law School where he graduated cum laude.

After law school, Kennedy returned to California, due to his father's ill health. He worked as an associate attorney at a San Francisco law firm until his father passed away two years later. Kennedy returned to Sacremento to wind down his father's law practice, but instead ended up taking it over, becoming a solo practitioner. Kennedy stayed in that position for twelve years.

The same year he returned to Sacremento he married Mary Davis, a childhood friend. Mary Davis has a Masters in Education from Stanford University and spent many years as a teacher and librarian in the Sacramento public schools. They are still married today and have three children.

In Sacramento, Anthony Kennedy, continuing his father's law practice, entertained clients and maintained many of the close connections his father had with heads of state. Kennedy was said to have "often entertained clients and guests at lavish parties and exclusive restaurants and to have donated large sums of money on behalf of himself and his clients to various political officials in the state." This work led Kennedy to meet and befriend perhaps the greatest political ally of his life - Ed Meese, who then represented the California District Attorney Association, but went on to serve in Ronald Reagan's gubernatorial administration and then became the Attorney General when Reagan was President. Meese and Kennedy became close friends, a friendship that would lead Kennedy to show up on Reagan's radar years later.

In 1965, Justice Kennedy transitioned into a teaching position and became a professor of constitutional law at the McGeorge School of Law, University of the Pacific, where Justice Kennedy, even today, continues to be an active faculty member - teaching summer courses for the school in Europe. Indeed, Justice Kennedy is the longest-serving faculty member at the school.

In 1973, Ed Meese recruited Kennedy to help Ronald Reagan draft a plan to cut taxes and spending in the state of California. Kennedy helped draft what came to be known as Proposition One, a ballot initiative to limit the state's spending, and in doing so he won Reagan's favor. Reagan rewarded Kennedy for his work by recommending him to then President Gerald Ford for a vacancy on the United States Court of Appeals for the Ninth Circuit. Kennedy was unanimously confirmed and at the age of 39 became the youngest federal judge of his day. Kennedy served on the Ninth Circuit Court of Appeals for twelve years and during that time was the leader of the court's conservative justices. He was admired for his often narrow and well-crafted opinions that drew few dissents.

When Justice Lewis Powell retired in 1987 Reagan first nominated Robert Bork, a DC Circuit Court of Appeals judge, but Bork, an outspoken conservative legal scholar, was rejected by the then majority Democratic senate. Reagan then nominated Douglas Ginsburg, another DC Circuit Court of Appeals judge, who was forced to withdraw his nomination after just nine days when it was revealed that he had smoked marijuana as a professor at Harvard Law School. On the advice of Ed Meese, Reagan then turned to Anthony Kennedy, who even though he had been a conservative justice was admired by many liberals for his pragmatic decision-making.

Kennedy was unanimously confirmed to the U.S. Supreme Court on February 3, 1988, and took his oath of office a few days later.

Justice Kennedy's Jurisprudence
It was clear from Kennedy's confirmation hearing that he was not an originalist, as was Bork or Scalia: he testified at his confirmation hearing: "Over time, the intentions of the framers are more remote from their particular political concerns, and so they have a certain purity and a certain generality now that they did not have previously . . . it sometimes takes humans generations to become aware of the moral consequences of their own conduct. That does not mean that moral principles have not remained the same."

For Kennedy, the liberties in the constitution are not strictly limited to the way they would have been applied at the time of the adoption of the constitution, rather they are general moral principles that may require different applications as time passes in order to maintain the generalized concepts of individuality, liberty and dignity that the framers memorialized in the constitution.

Because Justice Kennedy's philosophy is not as capable of being pigeonholed as other justices, Justice Kennedy has often confounded legal scholars who have attempted to extrapolate a rule-oriented jurisprudence from Justice Kennedy's decisions. In general, however, one can say that Justice Kennedy is reliably conservative in most areas except in cases involving individual rights. For example, Kennedy has consistently departed from his conservative colleagues in gay rights cases.

Gay Rights
In 1992, Colorado voters passed by a margin of 54% to 47% an Amendment to the Colorado Constitution that prohibited any legislative, executive or judicial action at any level of state or local government designed to protect gays and lesbians against discrimination - including against discrimination in housing, employment, education, public accommodations, and health and welfare services. Justice Kennedy wrote the opinion for the Supreme Court in Romer v. Evans, affirming the decision of the Supreme Court of Colorado striking down the amendment.

Justice Kennedy wrote for a 6-3 majority (with Justices Scalia, Thomas and Rehnquist in dissent):

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. . . . the disadvantage imposed is born of animosity toward the class of persons affected. [I]f the constitutional conception of ‘equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.

Four years prior, in 1998, two Texas citizens were arrested after police, based on a false report filed by their disgruntled neighbor, entered their residence and found them engaging in consensual homosexual sex which was then illegal under a Texas sodomy law that made it a crime for two persons of the same sex to engage in an act of sodomy anywhere in the state. The two men were arrested. On appeal to the Supreme Court, Justice Kennedy, in Lawrence v. Texas, again wrote the majority opinion (with Scalia and Thomas in dissent) striking down the law, stating:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.

Rather than striking the law down on equal protection grounds, Justice Kennedy and the majority struck the law down on due process grounds in order to provide a general right to privacy. Scalia accused the majority of "signing on to the homosexual agenda." Kennedy also referenced foreign law in justifying his decision, which many conservative critics disliked. Kennedy pointed out that the United Kingdom had repealed all laws punishing homosexual conduct in 1967 and that five years earlier the European Court of Human Rights had held that laws forbidding homosexuals the right to engage in homosexual sex were invalidated under the European Convention on Human Rights.

Death Penalty
Kennedy also cited foreign law in the 2005 case of Roper v. Simmons, in which he wrote the majority opinion over the dissents of Rehnquist, O'Connor, Scalia and Thomas. In Roper, Justice Kennedy joined by the Court's more liberal justices held that it was unconstitutional to apply the death penalty to crimes committed when the defendant was under 18, overturning statutes in 25 states. Justice Kennedy noted that "only seven countries other than the United States ha[d] executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China." Justice Kennedy noted that since 1990 each of those countries had either abolished the death penalty for juveniles or made public disavowal of the practice, and that the United States stood alone in allowing executions of juvenile offenders. He also noted that only the United States and Somalia had not ratified Article 37 of the United Nations Convention on the Rights of the Child, which expressly prohibits capital punishment for crimes committed by juveniles.

Kennedy also cast the fifth vote in Kennedy v. Louisiana. A case which involved the brutal rape of an eight year old child by her stepfather, who was subsequently sentenced to death by the state of Louisiana. Kennedy voted along with the liberal justices to prohibit the use of the death penalty for the crime of rape of a child where the victim did not die and the death would not have been intentional. Kennedy wrote:

It must be acknowledged that there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death. These facts illustrate the point. Here the victim's fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood. We cannot dismiss the years of long anguish that must be endured by the victim of child rape. It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State's power to punish "be exercised within the limits of civilized standards." Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime. It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment. . . . [C]rimes 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 be compared to murder in their "severity and irrevocability."

An Example to the World
Justice Kennedy has a strong belief in the United States serving as a beacon and model of liberty to the rest of the world. Asked in 2005, "How would you like to be remembered" Kennedy replied: "Somebody who's decent, and honest, and fair, and who's absolutely committed to the proposition that freedom is America's gift to the rest of the world." He also related the following story:

I was talking to some students around the turn of the century. I guess it would be 1999, I think, and some student raised his hand and said, "What are the great issues of the next millennium?" Or the next 100 years. It was something I should have had an answer for, after dinner table conversation or something, in reflection, but I didn't. It caught me by surprise. So, I came up with an answer. I said, "We have the great challenge and the first duty to build bridges of understanding with the world of Islam." And I got more letters from that comment -- it was on C-Span -- than anything I've ever said. Thousands of letters saying, "Why?" People saying -- and it struck me that there's a void there. We're in a struggle in which our security will depend on ideas. The idea of freedom, if accepted by most of the rest of the world, is our best security. And, we must build bridges of understanding to explain the principles of freedom. And, I'm not sure that we're doing a very good job at the moment.

This conception of the responsibility of the United States to the rest of the world, likely, led Kennedy to cast the deciding vote in Boumediene v. Bush, holding that noncitizens detained at Guantanamo Bay had the right to seek habeas corpus review of their detainment in a federal court, striking down section 7 of the Military Commissions Act which effectively suspended the writ of habeas corpus for the detainees at Guantanamo. Writing the majority opinion for the court, Justice Kennedy stated, "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. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law."

Liberty's Limits
Justice Kennedy's conception of liberty however has limits. For instance, he provided the fifth vote in Boy Scouts of America v. Dale, holding that the Boy Scouts of America was free to express its anti-gay views by firing a scoutmaster who it had found out was gay. Justice Kennedy joined Chief Justice Rehnquist's opinion in the case, which held that applying a New Jersey law that prohibited discrimination based on sexual orientation to the Boy Scouts of America violated their first amendment right to express their viewpoint that disapproves of homosexuality. Rehnquist stated that this holding is "crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas." As the dissent pointed out, however, the Boy Scouts would not have been permitted to fire a scoutmaster based solely upon race or creed and so it was clear that Kennedy was not yet prepared to give sexual orientation a protected status.

Abortion
As for abortion, Kennedy has made it clear that he would not overrule Roe v. Wade. Kennedy joined O'Connor's opinion in Planned Parenthood v. Casey, a case that reaffirmed Roe, but he has also made it clear that Roe is to be read somewhat narrowly. He dissented in the 2000 decision of Stenberg v. Carhart, which struck down laws criminalizing partial-birth abortion and wrote the majority opinion in the 2007 case of Gonzales v. Carhart, which effectively overruled Stenberg by holding that a federal law criminalizing partial birth abortion did not violate the principles of Casey because it did not impose an "undue burden" on the freedom of abortion.

Affirmative Action
While Justice Kennedy has voted to strike down every affirmative action program that has been reviewed by the Court during his tenure, his position on affirmative action is subtler than that of his fellow conservative colleagues.  While justices Roberts, Scalia, Thomas and Alito believe that race may never be a factor in admissions and that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Justice Kennedy would permit schools to "'take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual.'"  In his concurring opinion in Parents Involved in Community Schools v. Seattle School District No. 1 (2007) Justice Kennedy wrote:

If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race. School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race.

Even so, a case has yet to reach the Supreme Court where race has been used in school admissions utilizing Justice Kennedy's formulation. On February 21, 2012, the Court granted certiorari to the case of Fisher v. University of Texas at Austin in order to consider the use of race as a factor in undergraduate admissions at the University of Texas at Austin. Because the program at issue in Fisher does not differ in a meaningful way from the program upheld in Grutter, which five justices on the Court today have expressed disagreement with, many believe that the program in Fisher will be held unconstitutional.  Still, despite his dissent in Grutter, Justice Kennedy may not be as quick to overrule Grutter as his four other conservative colleagues will be and may apply the doctrine of stare decisis to uphold the program in Fisher.  Almost all agree, however, that the decision will come down to Justice Kennedy's opinion in the matter.

The Overcrowded Prison System
Kennedy has been active off the bench in calling for reform of the overcrowded prison system in the United States. He delivered an impassioned speech on the subject in 2003 to the American Bar Association. Eight years later, Justice Kennedy provided the fifth vote in Brown v. Plata, joining the more liberal justices, upholding a federal court decree ordering California to reduce its prison population to avoid violations of the Eighth Amendment's prohibition against cruel and unusual punishment. While California prisons were designed to house 80,000 inmates, by the time the case reached the Supreme Court the prison population stood at 156,000 inmates. Justice Kennedy wrote:

To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison's failure to provide sustenance for inmates ‘may actually produce physical torture or a lingering death.' Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society. If government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation.

Justices Scalia, Thomas, Alito and Roberts dissented. Justice Alito, joined by Chief Justice Roberts stated: "The Constitution does not give federal judges the authority to run state penal systems." Justice Scalia, joined by Justice Thomas, issued a scathing opinion that began: "Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation's history . . . . The proceedings that led to this result were a judicial travesty. I dissent because the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity."

Off the Bench
Off the bench Kennedy spends his summers in Salzburg, Austria where he teaches international and American law to students of the University of Salzberg on behalf of the McGeorge School of Law's international program. He also attends an annual international judges conference held there as well.

In 2005, Justice Kennedy granted an interview to the Museum of Living History in Washington, D.C. Kennedy was asked what books he would recommend to youngsters, he answered:

I think fiction is very important because it gets us into the mind of a person. Hamlet is a tremendous piece of literature. You know Hamlet better than you know most real people. Do you know the reason? Because you know what he's thinking. And this teaches you that every human has an integrity and an autonomy and a spirituality of his own, of her own, and great literature can teach you that. Billy Budd, Antigone, are very important works. Antigone is brilliant. You know, in literature, the woman is a symbol of mercy and of equity: Antigone, Portia -- Rosa Parks, to use a real person. That's why Justice is a woman, even though she has a sword sometimes. I don't know if that fits, but so: Antigone, The Merchant of Venice, Hamlet, Billy Budd, Nineteen Eighty-Four. You and I grew up with a great fear of the Soviet military might. Nineteen Eighty-Four has one of the most brilliant scenes in literature. The protagonist is being tortured by his communist or totalitarian interrogators, and they want him to say that "Two and two is five." And finally he can't stand the torture anymore, he says, "Okay, two and two is five." But, the torture continues. He said, "Why are you continuing?" They say, "The torture continues not until you just say it, but until you believe it." And, this is a powerful reminder that governments want to plan your destiny. They want to plan what you think, and this must never happen. And so, Nineteen Eighty-Four is a book of tremendous importance, I think, in that regard.

Justice Kennedy is reported to be in good health and will likely be on the Court for a good while longer. Despite the confirmation of seven new justices to the bench since Justice Kennedy was seated he is still the Court's all-important swing-vote and will likely continue to issue the deciding vote in a majority of the Court's most controversial cases in the years to come.