Kennedy’s farewell will also be the farewell to even the pretense of dispassionate, nonpartisan jurisprudence. Beginning with the fight over his replacement, it will be war to the knife on and around the Court for perhaps the next generation.
Meanwhile, he leaves behind a complex legal legacy that will be debated for decades. A profoundly conservative man, he nonetheless resisted attempts to turn the Supreme Court rapidly in a hard-right direction. His vote in 1992 was crucial to blunting the conservative movement’s drive to overturn Roe v. Wade and preserve a protected federal right to abortion. His abiding concern for what he called “dignity” led him to write opinions that, at first, only protected LGBT people from outright discrimination, then—seemingly by force of precedent rather than any original design—to recognize a constitutional right to same-sex marriage.
He also resisted efforts to remove national-security matters entirely from judicial scrutiny, and in a series of post-9/11 cases, his vote and voice were crucial in maintaining some level of judicial scrutiny over the detention and treatment of those seized by the U.S. military and held at the U.S. military enclave in Guantanamo, Cuba.
Anthony Kennedy was born in 1936 in Sacramento, California, where his father, also named Anthony, had a thriving solo practice as a politically connected lawyer and lobbyist. Kennedy himself served as a page in the California legislature. He met Governor Earl Warren there, and felt at home with state politics for the rest of his career. He attended Stanford University and Harvard Law School, then in 1962 began practice with Pillsbury, Madison & Sutro in San Francisco, seemingly bound for a career as a partner at a large big-city law firm. The next year, however, the elder Kennedy died, and his son returned to Sacramento to take over his practice. Over the next dozen years, Kennedy and his wife, the Sacramento native Mary Davis, built a prosperous and by many accounts blissful life in Sacramento. He practiced and lobbied, and became an outside adviser to Ronald Reagan when he became California’s governor in 1966. He also taught constitutional law at University of the Pacific’s McGeorge School of Law there.
His outside work for Governor Reagan brought him into contact with Reagan’s trusted legal adviser, Edwin Meese Jr. In 1975, President Gerald Ford, in part because he was seeking to placate Reagan and avoid a primary challenge the next year, appointed Kennedy to the Ninth Circuit Court of Appeals. Arriving as the youngest member of any court of appeals at that time, he served there with distinction but no particular fame until 1986, when Meese, by then attorney general of the United States, called to ask him to help then-President Reagan weather a judicial crisis by accepting a nomination to the Supreme Court.