Anthony Kennedy: Figuring out the Supreme Court’s swing vote

August 14, 2013

(Editor’s note: Over the next nine weeks, we’ll be profiling each of the sitting Supreme Court justices currently on the bench.) Anthony Kennedy

Last week’s profiled justice, Clarence Thomas, was described as a conservative who, because of his unique judicial philosophy, sometimes found himself on the same side in a court ruling as the liberals.

This week’s justice, Anthony Kennedy, can be similarly described; however, where Justice Thomas’ unique philosophy is one of a broad, comprehensive ideology that guides his decisions in all of the cases that he hears, Justice Kennedy’s philosophy is somewhat the opposite.

Instead of following an inflexible set of guiding principles, Kennedy approaches cases on an individual basis, seeking to rule on them on narrow grounds while building consensus among his fellow justices.

And these beliefs in building relationships played a large part in Kennedy’s sitting on the Supreme Court today.

Anthony McLeod Kennedy was born on July 23, 1936, in Sacramento, California, the second of three children.

His father, Anthony J. Kennedy, was a dock worker in San Francisco who worked his way through college and law school.  He eventually built a substantial practice in addition to being an influential lobbyist in the California legislature.  His mother, Gladys Kennedy (née McLeod), was active in local Sacramento civics.

Kennedy attended McClatchy High School, a local public school, and graduated therefrom in 1954.  He then attended Stanford, like his mother before him.  Kennedy completed his graduation requirements in three years, and so spent one year at the London School of Economics before receiving his bachelor’s degree in political science in 1958.

He then attended Harvard Law School, graduating cum laude in 1961.  After serving a year in the California National Guard, Kennedy began to practice law in San Francisco, California.

In 1963, Kennedy’s father died unexpectedly.  So, after only a year of practicing law, Kennedy moved back to Sacramento to take over his father’s practice.

Despite his inexperience, Kennedy was able to prove to his father’s clients that he had just as much legal prowess as his father, if not more.

Like his father, Kennedy also worked as a lobbyist and established a variety of close ties in the world of California politics.

One of these connections was with Ed Meese, who then represented the California District Attorney Association.  Because of the similarities shared between Kennedy’s and Meese’s ages and backgrounds, the two became close friends.

In 1966, however, Meese left to work for Ronald Reagan, who had just been elected governor of California.  The two kept in contact, though, and Meese’s connection to Reagan helped Kennedy establish his own ties to the future U.S. president.

In 1973, Kennedy was enlisted by Meese to help Reagan draft a plan to cut taxes and spending.  The result was “Proposition 1,” a ballot initiative which Kennedy helped draft.  Kennedy didn’t stop at just the initiative’s creation: he travelled the state to campaign for the proposal’s passage.  These efforts caught Reagan’s attention along with his favor.

Proposition 1 ultimately failed; regardless, Kennedy had left such an impression on the governor that Reagan recommended him to President Gerald Ford for a vacancy on the Ninth Circuit Court of Appeals.

Ford followed Reagan’s recommendation and nominated Kennedy to the seat on March 3, 1975.  On March 20, 1975, Kennedy was unanimously confirmed by the Senate.  When Kennedy took his seat on the Ninth Circuit on March 24, 1975, he was only 38, making him the youngest federal judge at the time.

As a judge, Kennedy was known for his calm and friendly demeanor, along with his judicial approach of taking cases on an individual basis, rather than espousing broad ideologies.  In a Ninth Circuit that was becoming increasingly politically polarized, Kennedy earned the respect of ideologically-opposed judges for being pragmatic and even-handed.

Anthony Kennedy Red MassWhen Justice Lewis Powell retired from the Supreme Court in 1987, Kennedy was reportedly on Reagan’s short list of candidates to fill the vacancy.  However, Reagan first nominated Robert Bork, whose nomination famously (and ignominiously) failed after meeting intense opposition from Senate Democrats.

Next, Reagan nominated D.C. District Court judge Douglas Ginsburg, who withdrew his name from consideration after allegations leaked about his marijuana use in the 1960s and 1970s.

Reagan finally turned to Kennedy on the advice of Meese.  Unlike Reagan’s previous two nominations for this vacancy, Kennedy’s breezed through the Senate, thanks to Kennedy’s spotless record and his being viewed as balanced fair-minded, by both conservatives and liberals.

On February 3, 1988, the Senate unanimously confirmed Kennedy, and he was sworn in eight days later.

As Supreme Court justice, Kennedy falls on the conservative side of the political spectrum, but only moderately so, and is often found casting the tie-breaking votes in divisive cases.  This has been especially true since Justice Sandra Day O’Connor retired in 2005.

Moreover, Kennedy has often taken positions on certain issues that have angered conservatives, especially those who expected him to adhere to a more strictly conservative voting record.

As seen most recently this past term, one of these certain issues is LGBT rights: in U.S. v. Windsor, Justice Kennedy wrote the majority opinion striking down Section 3 of the federal Defense of Marriage Act (DOMA), clearing the way for federal recognition of state same-sex marriages.

This stance has greatly infuriated many conservatives, not only for the decision itself but because Kennedy’s opinion talks of DOMA’s interference with marriage equality – language decidedly used by proponents of same-sex marriage.

For those familiar with Kennedy’s previous votes in LGBT rights cases, though, his stance in Windsor shouldn’t be terribly surprising; Kennedy also wrote the majority opinions in the two most recent Supreme Court victories for LGBT rights proponents (besides Windsor): 1996’s Romer v. Evans and 2003’s Lawrence v. Texas.

The other most contentious area that Kennedy has disappointed conservatives presented itself much earlier in his tenure: abortion.

In 1989’s Webster v. Reproductive Health Services, Kennedy sided with the four justice minority willing to strike down Roe v. Wade, thereby eliminating any constitutional right to an abortion.

Many abortion opponents believed that Roe’s days were at an end with 1992’s Planned Parenthood v. Casey, since the intervening years had seen the replacement of two pro-Roe justices (William Brennan and Thurgood Marshall) with Republican-appointed justices – thereby creating the minimum five-justice critical mass needed to overturn the landmark 1973 ruling.

Justice Kennedy, though, in what many conservatives described as a betrayal, changed his vote to uphold Roe.

And the manner in which Kennedy did so is emblematic of his consensus-building style: he joined with two other justices (Sandra Day O’Connor and David Souter) to find a middle ground.

Although Kennedy still votes with the Court’s conservative bloc more often than not, he still espouses a case-by-case approach that can often put him at odds with the rest of the conservatives on the high court.

And although he generally avoids making sweeping rulings that make a huge impact on the legal landscape, as Windsor (and Shelby County v. Holder) demonstrate, he is more than willing to do so when other interests are at stake (which include states’ rights and individual rights).

Thus, even though Kennedy falls on the conservative side of the ideological spectrum, he remains difficult to pin down much of the time.

Considering that Kennedy votes with the majority in 5-4 cases well over 80% of the time, however, the outcome of Supreme Court cases are often as difficult to predict as Kennedy himself.