Will Anthony Kennedy halt or advance the rightward swing of the U.S. Supreme Court?
Newsweek claims he holds the “balance of power” on the U.S. Supreme Court. The Washington Post calls him the country’s “most important justice” and has dubbed him a “Supreme Court of One.” The New Republic’s Jeffrey Rosen puts it this way: “As Kennedy goes, so goes America.”
How did Sacramento homeboy Anthony Kennedy, a one-time skinny McClatchy High School geek (the smart one? with glasses? the altar boy who never got into trouble?) come to play the pivotal role of swing justice on a U.S. Supreme Court that’s more polarized between liberal and conservative than any in modern history?
It started with President Ronald Reagan.
Yes, it was the Gipper who appointed the bright, 6 foot 3, River City conservative to the high court back in 1987 after the disastrously failed nomination of right-wing ideologue Robert Bork. Kennedy was chosen for his intellectual merit, sure, but also it was because his confirmation was unlikely to be controversial. (“You’re going to have a boring afternoon,” Kennedy told a group of politicos as they prepared to consider his nomination.)
Kennedy’s tenure on the court since then has been marked by a moderate conservatism that tended to line up with former “centrist” Justice Sandra Day O’Connor. Sometimes he’d favor the liberal side, but a bit more often he’d decide with the conservatives. In the last years, for example, the 71-year-old voted with the liberals on cases related to gay rights and the death penalty, but with the conservatives when it came to free speech (remember Bong Hits 4 Jesus?) and corporate and executive powers. On abortion rights, his record is ambiguous, though he drew the ire of women’s groups last spring with his vote to uphold a ban on partial-birth abortions. (There’s a reason why former law clerks have jokingly referred to Kennedy as “flipper.”)
With O’Connor gone, replaced with the rightward leaning Samuel Alito, Kennedy now stands alone in the middle on a court with four consistent conservative votes (Chief Justice John Roberts, Antonin Scalia, Clarence Thomas and Alito) and four liberal ones (David Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer). Of the record-breaking number of 5-4 rulings that emanated from the court in the post-O’Connor 2005-06 term, Kennedy’s vote made the majority opinion in each and every case.
The fact is stunning. And it makes both sides nervous about what is to come.
Lawyers who argue before the Supreme Court now formulate their cases specifically to gain Kennedy’s approval. Even Kennedy’s fellow justices parlay for his all-important vote. Make no mistake: As the new term opens this week in Washington, D.C., Kennedy is the man, without a doubt, to whom all attention must be paid.
The skinny kid
Kennedy described himself as a “skinny kid” and “nerdy” long before those traits were considered positive attributes. Growing up near Land Park in classic Sacramento style (a white colonial-style house behind a camellia bush), the young Kennedy was bright and studious, a super straight-arrow teenager.
His friends from that period uniformly describe “Tony” as a bright, driven fellow who seemed mysteriously missing whenever mischief was under way. Kennedy didn’t date, was not a partygoer and didn’t play sports. “He was your 90-pound weakling,” said one former McClatchy High School mate with affection. “He didn’t stand out in a crowd, but he was always very, very bright.”
Kennedy attended Stanford before making his way cum laude through Harvard Law School in three years, graduating in 1961. He went into private practice in San Francisco, but then his dad, Anthony “Bud” Kennedy, a lawyer and liquor lobbyist, died in 1963 of a heart attack. The son returned home to Sacramento to take over his father’s estate and practice. That same year, he married his wife, a schoolteacher, Mary Davis Kennedy.
In 1965, the late Gordon Schaber of the McGeorge School of Law called on Kennedy to teach a class in constitutional law. He said yes, so for one evening a week, for 22 years, Kennedy carried a sheaf of folders to class but became famous for lecturing for hours without ever referring to a single note. Remarking on the energy with which he taught, Schaber once called Kennedy “a human hydroelectric project.”
By the mid-1970s, Kennedy was drafted to work for California’s Governor Ronald Reagan, hired to write the Republican’s first attempt at a drastic tax-cut measure called Proposition 1. The measure failed, but paved the way for the notorious Proposition 13. In 1975, based largely on his work on that measure, Kennedy was appointed to the 9th Circuit Court of Appeals by President Gerald Ford.
In 1987, Kennedy was singled out when, post-Bork, President Reagan needed a qualified nominee who could pass through the bipartisan fires. Kennedy was depicted in the national media at that time as a man who virtually stepped out of a Norman Rockwell painting, a conservative federal judge and devout Catholic with a schoolteacher wife from a mid-size provincial town in Northern California.
The portrayal was basically true. Indeed, at the time Reagan came calling on the then 51-year-old federal judge, he still lived in the same home he’d grown up in as a boy, the one with the camellias. He still taught his one night class per week at McGeorge. He still kept up friendships (and still does) with his old crew from McClatchy High. Kennedy, who declined to be interviewed for this article, was quickly given the nod and placed on the highest court in the land.
Once and future justice
This past Tuesday, hundreds of tourists strode past the nation’s Capitol in Washington, D.C., and climbed up the steps of a nearby building with its majestic white marble columns and “Equal Justice Under Law” engraved high above. Many had waited in line for hours to enter the Supreme Court, one of the city’s favorite destinations. When court is in session, as it was this week for the first time this term, anyone willing to go through security can enter the building’s ornate court chambers and watch the nation’s nine justices hear “oral arguments” and then grill the lawyers who make them. In fact, the building is one of three D.C. symbols (along with the Capitol and White House) that best express the ideal of democracy, as arrived at by three independent branches of government.
The “three branches” thing is why liberal court observers were dismayed last June when many end-of-term Supreme Court rulings seemed a triumph of the rightward agenda long-favored by the executive branch. The decisions included one to uphold a ban on partial-birth abortions (seen as a crucial advance against Roe v. Wade), a ruling to overturn a century’s old antitrust case (seen as favoring corporations over consumers), and a ruling that overturned the efforts of the Louisville and Seattle school districts to voluntarily use racial criteria to reduce segregation (seen as a step toward overturning Brown v. Board).
Kennedy, whose all-important vote made the 5-4 decision in all three cases, recently told Newsweek that he prefers not to be labeled a “swing” vote, saying it implies a “swing for the purpose of accommodating one side or another.” Though Kennedy insists that the court does not rule based on a liberal/conservative Maginot line, he certainly has found himself acting as a moderating force between the two sides. For example, though he voted with the conservatives on the affirmative-action case, he refused to join Chief Justice Robert’s attempt to dismiss all race-based solutions and wrote in a second opinion that ending racial isolation was “a compelling educational goal,” but that “the problem defies an easy solution.”
Kennedy has taken a few knocks lately, and not just from the left side of the dial. Right-wing pundits have been incensed by his use of foreign legal precedent in rulings on gay rights and death-penalty cases. And New Yorker legal writer Jeffrey Tobin’s new book, The Nine: Inside the Secret World of the Supreme Court, identifies Kennedy as having grown downright pompous over the years. Still, it’s hard not to give the benefit of the doubt to a justice with a dramatic flare—he presided over a staged “Trial of Hamlet” in a Kennedy Center performance last spring—especially as it is accompanied by a lack of materialist inclinations. Kennedy has amassed the least wealth of any on the court, with financial-disclosure statements that show him to have about $200,000 in assets, not including his home.
Recently returned from a teaching stint at the McGeorge-sponsored Salzburg Summer Program in Austria, Kennedy begins October ensconced in D.C. with wife Mary, readying for another term. It will no doubt be another turbulent year. Among other matters, the court will be ruling on issues relating to lethal injection, whether or not to uphold a D.C. court’s ruling to ban gun control, and on aspects of election law.
For all of what is to come, Kennedy remains cautious, conservative, still there somewhere right of center. One thing is certain: Of the nine, it’s the Sacramento man in the middle who will determine all crucial outcomes.