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Anthony Kennedy

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Anthony Kennedy
Image of Anthony Kennedy
Supreme Court of the United States (senior status)
Tenure

2018 - Present

Years in position

5

Prior offices
United States Court of Appeals for the 9th Circuit

Supreme Court of the United States

Education

Bachelor's

Stanford University, 1958

Law

Harvard Law School, 1961

Personal
Birthplace
Sacramento, Calif.


See also: Supreme Court vacancy, 2018: An overview

Associate Justice Anthony McLeod Kennedy was the 104th justice to sit on the Supreme Court of the United States. He was nominated by Republican President Ronald Reagan on November 12, 1987 to replace Justice Lewis Powell. He was confirmed by the United States Senate on February 17, 1988. Kennedy retired from the court and assumed senior status as a federal judge on July 31, 2018.[1][2]

Kennedy received a political science degree in 1958 from the London School of Economics. He worked in private practice, managing his father's firm until he was appointed as a federal judge. Kennedy also worked as a professor of law at the University of the Pacific’s McGeorge School of Law.

President Gerald Ford appointed Kennedy as a federal judge for the Ninth Circuit Court of Appeals on May 30, 1975. At 38 years old, he was, at the time, the youngest federal appellate judge in the country. Kennedy retained this position until his nomination to the Supreme Court in 1987.

Kennedy co-authored the majority opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, writing that abortion restrictions cannot place an “undue burden” on women acting within the boundaries set by Roe v. Wade. He also wrote the majority opinion in Boumediene v. Bush, writing that habeas corpus applied to Guantanamo Bay prisoners and that their imprisonment under the Military Commissions Act of 2006 violated this right.[3]

Historical SCOTUS Graphic small.png

Professional career

Kennedy was in private practice in San Francisco, California, from 1961 to 1963. Following his father's death, he took over his father's practice in Sacramento, California. From 1965 through 1987, Kennedy was a professor of constitutional law at the McGeorge School of Law at the University of the Pacific. During Kennedy's time as a law professor and attorney, he assisted then-California Governor Ronald Reagan with drafting a state tax proposal.[4]

Kennedy has served in numerous positions during his career, including in the California Army National Guard in 1961 and on the board of the Federal Judicial Center from 1987 to 1988. He also served on two committees of the Judicial Conference of the United States: the Advisory Panel on Financial Disclosure Reports and Judicial Activities (subsequently renamed the Advisory Committee on Codes of Conduct) from 1979 to 1987 and the Committee on Pacific Territories from 1979 to 1990. Kennedy also chaired the latter committee from 1982 to 1990.

Early life and education

Kennedy grew up in Sacramento, California. He served as a page in the California State Senate when he was young. Kennedy graduated from C. K. McClatchy High School in 1954 and went on to earn his B.A. in political science from Stanford University in 1958. He spent his senior year at the London School of Economics. He earned his Bachelor of Laws from Harvard Law School, graduating cum laude in 1961.[4]

Approach to the law

Kennedy's judicial philosophy often focused on his interpretation of individual constitutional rights. Examples include his majority opinions in Boumediene v. Bush, which ruled that Guantanamo Bay prisoners have a right to habeas corpus, and Romer v. Evans, which ruled that an amendment to the Colorado state constitution barring the state and local governments from passing LGBTQ protection legislation was unconstitutional. In the majority opinion affirming the right to same-sex marriages in Obergefell v. Hodges, Kennedy wrote that “[These petitioners] ask for equal dignity in the eyes of the law. The Constitution grants them that right.”[5]

Martin-Quinn score

Kennedy's Martin-Quinn score following the 2016-2027 term was .407, making him the fourth-most conservative justice on the court at that time. Martin-Quinn scores were developed by political scientists Andrew Martin and Kevin Quinn from the University of Michigan, and measure the justices of the Supreme Court along an ideological continuum. The further from zero on the scale, the more conservative (>0) or liberal (<0) the justice. The chart below details every justice's Martin-Quinn score for the 2016-2017 term.

Judicial Career

United States Supreme Court (1988-2018)

President Ronald Reagan nominated Kennedy to the Supreme Court after Reagan's failed attempts at nominating both Robert Bork and Douglas Ginsburg.[6][7]

While vetting Kennedy for a potential nomination, some of Reagan's Justice Department lawyers said that Kennedy was too eager to inject the courts into disputes that many conservatives would rather leave to legislatures and to identify rights not expressly written in the Constitution. Kennedy's stance favoring privacy rights also drew criticism. Kennedy cited Roe v. Wade and other privacy rights cases favorably, which one attorney called "really very distressing."[8]

Ninth Circuit Court of Appeals (1975-1988)

United States Court of Appeals for the Ninth CircuitUnited States District Court for the Northern District of CaliforniaUnited States District Court for the Northern District of CaliforniaUnited States District Court for the Eastern District of CaliforniaUnited States District Court for the Eastern District of CaliforniaUnited States District Court for the Central District of CaliforniaUnited States District Court for the Central District of CaliforniaUnited States District Court for the Southern District of CaliforniaUnited States District Court for the Southern District of CaliforniaUnited States District Court for the District of OregonUnited States District Court for the Eastern District of WashingtonUnited States District Court for the Eastern District of WashingtonUnited States District Court for the Western District of WashingtonUnited States District Court for the Western District of WashingtonUnited States District Court for the District of IdahoUnited States District Court for the District of MontanaUnited States District Court for the District of NevadaUnited States District Court for the District of ArizonaUnited States District Court for the District of AlaskaUnited States District Court for the District of HawaiiUnited States District Court for the District of GuamUnited States District Court for the Northern Mariana Islands
Map of the Ninth Circuit. Click on a district to find out more about it.


Prior to his appointment to the Supreme Court, Kennedy served on the United States Court of Appeals for the 9th Circuit. He was recommended by then-Governor Ronald Reagan to President Gerald Ford, who nominated Kennedy on March 3, 1975. Kennedy received his commission on March 24, 1975. He was only 38 years old when he was appointed to the Ninth Circuit and was the youngest federal appellate judge in the country.[9]

Supreme Court statistics

Opinions by year

Below is a table of the number of opinions, concurrences, dissents and splits (concur in part, dissent in part) that Kennedy has issued since joining the Supreme Court according to the data on Cornell University’s Legal Information Institute and from the annual Stat Pack produced by the website SCOTUSBlog.[10][11]

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
Opinions 9 7 7 7 9 11 8 8 6 9 8
Concurrences 8 5 1 5 6 3 5 1 4 2 2
Dissents 3 0 3 1 4 3 1 1 3 2 0
Totals 20 12 12 14 19 17 14 10 13 13 10
1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005
Opinions 7 15 12 11 9 12 8 12 8 9 9 8 11 9 8 7 8 8
Concurrences 4 10 11 7 10 8 14 5 5 1 9 5 5 5 7 6 8 4
Dissents 3 4 8 7 5 4 1 1 3 2 3 5 4 1 3 5 6 5
Concur in part, Dissent in part 0 1 1 2 0 2 0 0 2 0 1 0 0 0 0 3 0 0
Totals 14 30 32 27 24 26 23 18 18 12 22 18 20 15 18 21 22 17

Frequency in majority

In the 2017 term, Kennedy was in the majority in 92 percent of decisions. He was in the majority in more than any of the eight justices except John Roberts. In the 2016 term, Roberts was in the majority in 97 percent of decisions. He was in the majority more often than all other justices during this term. Since the 2011 term, Roberts has been in the majority more than 80 percent of the time each term, and been in the majority more than 90 percent of the time six times.[12]

Noteworthy cases

The noteworthy cases listed in this section include any case where the justice authored a 5-4 majority opinion or an 8-1 dissent. Other cases may be included in this section if they set or overturn an established legal precedent, are a major point of discussion in an election campaign, receive substantial media attention related to the justice's ruling, or based on our editorial judgment that the case is noteworthy. For more on how we decide which cases are noteworthy, click here.


Bans on same-sex marriage held unconstitutional (2015)

See also: United States Supreme Court (Obergefell v. Hodges, 576 U.S. ___)

Justice Kennedy delivered the majority opinion of the court in the case. Same-sex couples in Kentucky, Michigan, Ohio, and Tennessee brought challenges against agencies in those states that refused to recognize same-sex marriages. The challengers, relying on the U.S. Supreme Court's decision in United States v. Windsor that struck down portions of the Defense of Marriage Act as unconstitutional, petitioned the court to apply similar logic to state statutes. Specifically, the petitioners argued that the statutory bans on same-sex marriage violated rights of equal protection and due process under the Fourteenth Amendment. Each of the different trial courts ruled in favor of the petitioners, but, after consolidating the appeals, the Sixth Circuit Court of Appeals reversed, holding that the bans did not violate the Fourteenth Amendment.

In announcing the judgment of the court, Justice Kennedy, who also wrote the court's opinion in Windsor, ruled that the state bans violated the petitioners' Fourteenth Amendment rights. Justice Kennedy held that the right to marry is a fundamental right protected by both the due process clause and the equal protection clause of the Fourteenth Amendment and that this right extends to same-sex couples who wish to marry as well. As a result of the opinion, state bans on same-sex marriage were struck down across the United States.

Certain limits on campaign finance struck down (2010)

See also: United States Supreme Court (Citizens United v. FEC, 528 U.S. 62)

Justice Kennedy was the majority opinion writer in the case involving the nonprofit group Citizens United and the Federal Elections Commission (FEC). Citizens United brought the original case against the FEC to allow the release of Hillary: The Movie to video-on-demand services. Citizens United said that it was important to protect corporate political speech in the same way that media outlets are protected. They also argued that they did not need to disclose who was funding political ads.

The FEC said that the practice would lead to a quid pro quo scenario and that corporations were not "natural persons" that should receive free speech protection. Justice Kennedy referenced the quid pro quo argument in his ruling:

Limits on independent expenditures, such as 441b, have a chilling effect extending well beyond the Government's interest in preventing quid pro quo corruption. The anticorruption interest is not sufficient to displace the speech here in question. Indeed, 26 States do not restrict independent expenditures by for-profit corporations. The Government does not claim that these expenditures have corrupted the political process in those States.[13][14]

The opinion also found that the "natural persons" argument was flawed, in that there is no way to define when someone crosses over from being a person to a corporation. Finally, Kennedy wrote that organizations must continue to disclose who they are if they are releasing political information.

The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of the corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.[13][14]

Chief Justice John Roberts and Justices Samuel Alito and Antonin Scalia concurred. Justices Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, John Paul Stevens and Sonia Sotomayor concurred in part and dissented in part.

Execution of minor defendants ruled unconstitutional (2005)

See also: United States Supreme Court (Roper v. Simmons, 543 U.S. 551)

Justice Kennedy delivered the majority opinion of the court in this case. The court held that the Eighth Amendment's protection against cruel and unusual punishment prohibited the execution of anyone convicted of a capital crime and sentenced to death who was a minor at the time the crime was committed.

Christopher Simmons was sentenced to death in 1993 for crimes committed when he was under the age of 18. After a number of appeals of his sentence were brought in state and in federal court, the Missouri Supreme Court stayed Simmons' execution while the U.S. Supreme Court decided Atkins v. Virginia in 2002. In Atkins, the Supreme Court ruled that executing developmentally disabled individuals violated the Eighth Amendment and the Fourteenth Amendment. Based on the court's decision, the Missouri Supreme Court reconsidered Simmons' appeal. In light of the court's ruling in Atkins, the Missouri court held that the law permitting execution of minors was no longer valid, specifically rejecting the U.S. Supreme Court's 1989 ruling in Stanford v. Kentucky permitting the practice.

The U.S. Supreme Court affirmed the judgment of the Missouri Supreme Court. Basing his ruling on the apparent consensus in state law and international law, as well as psychological evidence in support of the contention that minors do not possess the full faculties to appreciate the gravity of their decisions, Justice Kennedy held that the evolving standards of decency dicta in the Eighth Amendment's jurisprudence no longer permitted the execution of criminal minor defendants.

State bans on sodomy ruled unconstitutional (2003)

See also: United States Supreme Court (Lawrence v. Texas, 539 U.S. 558)

Justice Kennedy wrote the opinion for the 2003 case of Lawrence v. Texas, a case where two men were charged with sodomy for having consensual same-sex intercourse. Kennedy found the statute involved in the arrest of the men to be unfairly applied to same-sex couples. He pointed to cases wherein other states have anti-sodomy laws that show no signs of being enforced on consenting adults in private. He wrote:

The 25 States with law prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private.[15][14]

Kennedy closed his opinion by saying that the State has no justifiable interest in the intrusion on private activities of two consenting adults.[15]

Essential holding of Roe v. Wade reaffirmed (1992)

See also: United States Supreme Court (Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833)

Justice Kennedy joined Justices Sandra Day O'Connor and David Souter in announcing the judgment of the court. The case challenged revisions made by the Pennsylvania legislature in 1988 and in 1989 to the state's abortion law. The law required a woman wishing to terminate her pregnancy to provide informed consent and to complete a 24-hour waiting period prior to the procedure. A minor seeking an abortion was required the provide the consent of at least one parent, though the law had a procedure for a judicial bypass of this requirement. A married woman seeking an abortion had to document that she notified her husband of her intention to abort the fetus. A legal challenge to these provisions was prompted by several groups. The Third Circuit Court of Appeals upheld each of the provisions except for the requirement that a married woman notify her husband of her intent to obtain an abortion.

In announcing the judgment of the court, Justice Kennedy, along with Justices O'Connor and Souter, affirmed the central holding of Roe v. Wade—that a woman had a constitutional right to terminate a pregnancy—but upheld the majority of Pennsylvania's requirements. The court adopted a new standard for determining the validity of statutory regulations of abortions. This standard, which is sometimes called the undue burden standard, considers whether a state law or regulation places an undue burden on a woman's constitutional right to terminate a pregnancy. In the text of the opinion, an undue burden was defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this test, only the requirement that a married woman notify her husband of her intent to obtain an abortion was struck down by the court. The provision had also been struck down by the Third Circuit below.


Recent news

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See also

External links


Footnotes

Political offices
Preceded by:
Lewis Powell
Supreme Court
1988–2018
Seat #2
Succeeded by:
NA
Preceded by:
Charles Merton Merrill
Ninth Circuit
1975–1988
Succeeded by:
Pamela Ann Rymer