Justice Anthony Kennedy, who announced his retirement from the Supreme Court on Wednesday, will almost certainly be the last justice to come from a legal world that has now all but vanished—the decorous, Atticus Finch-style 20th-century life of the small-town, general-practice lawyer, who saw life from many legal angles and formed a bulwark of American communities in all 50 states.
That background, over the years, produced some of the Court’s most distinguished figures, including Justice Robert H. Jackson, who left his imprint on many areas of the law. Lewis F. Powell, Jr., the last justice to come straight to the high bench from private practice, was in many ways a kindred spirit, the product of law practice in a state capital similar in size and atmosphere to Kennedy’s beloved Sacramento.
Kennedy’s departure, announced on Wednesday for July 31, definitively turns a number of pages in the Court’s history. All the remaining justices come not from the practicing bar but from the ranks of academia, issue advocacy, and (most importantly) service to the federal executive. The change in provenance has been accompanied by a rise in ideology and in the growing partisanship on the Court. That partisanship has been accelerated by the efforts of the Republican Party to annex the Court as an outpost of its partisan control.
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.
The nomination came because Meese and other hard-edge ideologues in the administration had sought to replace retiring Justice Lewis F. Powell Jr. with Robert Bork, a leader of the then-nascent conservative movement in the law. Bork had alienated some Democrats by agreeing, as Richard Nixon’s solicitor general, to fire special prosecutor Archibald Cox during the infamous “Saturday Night Massacre” in which he attempted to derail the federal investigation into the Watergate scandal. But more troubling to Democratic senators was the prospect of replacing the moderate Powell with a figure who seemed far more ideological and hard-edged. Because Democrats controlled the Senate, and because advocacy groups mobilized to influence public opinion, the Senate eventually rejected Bork by a vote of 42–58.
Meese then hurriedly tapped a younger nominee, Douglas Ginsburg, a judge of the D.C. Circuit Court; but that nomination collapsed as well when news reports revealed the Ginsburg had been a regular marijuana user while on the faculty of Harvard Law School. The anti-drug administration, profoundly embarrassed, turned to Kennedy as a qualified nominee who didn’t bring the baggage of either previous choice, and he was approved on February 3, 1988, by a vote of 97–0.
The substitution of Kennedy for Bork unquestionably changed constitutional history. Unlike Bork, Kennedy brought the practitioner’s, rather than the professor’s, point of view to bear on the cases that came before him. His passions, the nation quickly learned, were for the First Amendment’s guarantee of freedom of speech and religion and also for the role of the federal courts, and especially the Supreme Court, in what he saw as a harmonious historical pageant of American progress. Where Bork had been suspicious of judicial power to resolve contemporary issues, Kennedy embraced it. Where Bork had proposed an overarching theory—“originalism,” which sought the historical meaning of constitutional provisions—Kennedy’s method of judging was eclectic. Where Bork had led legal discourse to the right, Kennedy seemed often to be searching for a center that would not necessary satisfy both sides of a dispute, but would not leave either side devastated.
The difference was thrown into sharp relief in 1992. Bork had left no doubt that he believed Roe v. Wade, which recognized a constitutional right to choose abortion, was wrongly decided and should be overturned. When Planned Parenthood challenged a Pennsylvania statute a few years after Kennedy’s rise to the Court, legal opinion on the left and right concurred that Roe’s time had come. Insider accounts from that term of Court, in fact, record that at conference the justices voted 5–4 to reverse Roe and return regulation of abortion to the states.
But as the justices labored over their opinions, Kennedy apparently had a change of heart. Late in the process, he switched his vote to join Justices Sandra Day O’Connor and David Souter in an extraordinary plurality opinion that “reaffirmed” Roe by rewriting it, changing reproductive choice from a “fundamental right” into a “liberty interest” that could be limited unless a regulation constituted an “undue burden.”
The announcement of the surprise result in Planned Parenthood of Southeast Pennsylvania v. Casey marks one of the most memorable moments in modern Supreme Court history, ranking for sheer human drama with New York Times v. United States (the “Pentagon Papers” case) and Bush v. Gore. Since Casey, Kennedy has traced a wavering course on abortion, approving some restrictions and rejecting others; in almost every case, his vote determined the result. Most recently, his was the deciding vote in Whole Woman’s Health v. Hellerstedt, in which the Court rejected a drastic regulation of Texas abortion clinics that had a proclaimed purpose of protecting women’s health but had little demonstrated benefit—and a harsh and seemingly intentional impact on the number of providers in the state.
Kennedy also maintained a near-religious awe for his vision of First Amendment freedoms. When the Court seemed poised to contract free-exercise rights in 1992, Kennedy put together a majority protecting Santeria worshippers from the “animus” of a local government that sought to ban their ritual slaughter of animals; the resulting opinion, Church of the Lukumi Babalu Aye v. Hialeah, remains a roadmap for judges seeking to distinguish discriminatory religious rules from “neutral, generally applicable rules.” The same year, in a case called Lee v. Weisman, he held that school officials could not invite clergy to give prayers at public high-school graduations, on the grounds that students, even though not required to attend, would face “psychological coercion” to attend and to stand as if observing the prayer. By no means a secularist, however, Kennedy 22 years later wrote for the Court that a New York town’s council could invite clergy to provide explicitly sectarian prayers before formal council meetings. Kennedy dismissed the burden this put on citizens’ religious sensibilities and focused on protection for those of the council members, who had the right “to show who and what they are without denying the right to dissent by those who disagree.”
As for First Amendment speech, Kennedy from early in his tenure insisted on it as a near-absolute right. In a little-noticed separate opinion in a case called Simon & Schuster v. New York Crime Victims Compensation Board, he wrote that the Court should stop subjecting limits on protected speech to “strict scrutiny” and approving them if they were “narrowly tailored” to a “compelling governmental interest.” Instead, he wrote that “a law is directed to speech alone where the speech in question is not obscene, not defamatory, not words tantamount to an act otherwise criminal, not an impairment of some other constitutional right, not an incitement to lawless action, and not calculated or likely to bring about imminent harm the State has the substantive power to prevent.” No balancing of state interests—no matter how crucial—was required; the law must fall.
Repeatedly he warned that any state limitation on speech, no matter how narrow or how justified, would put society on a path to the “Ministry of Truth” in George Orwell’s totalitarian fable 1984. That absolutist position led to his role as the author of Citizens United v. Federal Election Commission, in which he rejected a federal statute that barred corporations from spending their funds on “electioneering communications” within the weeks before a federal election. Corporate speech, he wrote, was as fully protected as the speech of the lonely dissenter, and indeed of great worth to society. “On certain topics corporations may possess valuable expertise,” he wrote, “leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials.” Citizens United was reviled among liberals, and Casey and Obergefell were hated by conservatives.
Kennedy’s role in the recognition of gay rights has been well chronicled. In 1996, he wrote for the majority in Romer v. Evans, which struck down a sharply anti-gay initiative in Colorado. Though the Court had not long before rejected—and indeed ridiculed—a claim that states could not outlaw gay sex, Kennedy’s Romer opinion insisted that a “State cannot so deem a class of persons a stranger to its laws.”
Romer gave heart to a generation of activists and, in 2003, led to the landmark case of Lawrence v. Texas, in which Kennedy and a majority reversed earlier precedent and held that states could not outlaw private homosexual conduct. At the time, Kennedy’s colleague Antonin Scalia warned in a furious dissent that the decision would surely lead to the recognition of same-sex marriage; nine years later, in Obergefell v. Hodges, Kennedy read in hushed courtroom for a five-justice majority an opinion announcing that states must recognize and themselves perform marriages between same-sex couples. Many of those in attendance, veterans of a movement undreamed of only a generation before, wept openly as the justice affirmed his vision of “dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”
Kennedy’s votes over the years seemed inconsistent to many, but not to him. He seemed to operate on a plane at a slight angle to the ideological reality the rest of America lived in, and always seemed to believe that his work was in the interests of his vision of liberty and dignity. In the years since 2008, he seemed to feel that his beloved country had turned away from liberty and toward a nightmare of big government. During oral argument in one of the many challenges to the Affordable Care Act, he asked Solicitor General Donald Verrilli whether the act’s “individual mandate” was not “changing the relation of the individual to the government in … a unique way.” His invocations of collectivist dystopias seemed to take on an additional urgency in the years since then.
That stubborn thread of libertarianism runs through all his opinions—some heartening, some infuriating, some simply puzzling. It was matched by a thread of decency and an abiding faith in the importance of courts and adjudication to a healthy democracy. On the bench, he was direct and ingenuous, and almost always courteous even to advocates whose cases he disliked. Those who met him found him almost uniformly warm and unassuming, still the gentle small-town lawyer he once had been.
For the past term at least, he has seemed visibly weary on the bench, and his courtly composure with advocates has turned at least intermittently testy. He leaves at a melancholy juncture for the Court; the events of 2016 have changed the institution he loves and its role in the national life, probably forever. The unprecedented blockade of the nomination of Merrick Garland by Senate Republicans, and the substitution of a hard-right Republican, former Kennedy clerk Neil Gorsuch, have begun to change the Court in ways that will take years to reckon.
There is no doubt whatsoever that Kennedy will be replaced by a much more ideological justice, and that much of his legacy may therefore prove evanescent. The Court’s progress on LGBT rights will almost certainly come to an end; its faint interest in protecting the political process from political gerrymandering will also disappear. The Casey precedent will fall, if not in the coming term, then the next, or the one after that. Overall, the Court will almost certainly take its place among the snarling partisan institutions that joust for power amid the unruly landscape of a divided republic.
Though much about his career has appalled and even enraged me, I must pay wholehearted tribute to a man who, arriving at the peak of power without entirely seeking it, managed to conduct himself by following his own lights rather than those of faction or party. His personal decency was matched by his integrity. He was his own man and his own justice.
He will shortly turn 82, an age where the joys of family and ease become compelling, and even powerful officials ask whether they want to die with their boots on. He may feel called back to the shadows of the lost small-town life he treasured and gave up to serve his country.
May his Sacramento summers be long and many.
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