Fast Facts:

• Born Sacramento, California, 1936.
• Married (3 children)
• Stanford University, London School of Economics, Harvard Law School
• Private practice in San Francisco, California 1961–1963, Sacramento, California 1963–1975
• Professor of Constitutional Law at the McGeorge School of Law, University of the Pacific 1965-1988
• United States Court of Appeals for the Ninth Circuit 1975-88.
• Associate Justice of the Supreme Court, since 18^th February, 1988.
• Appointed to Supreme Court by Ronald Reagan (Republican)

With the announcement that Kennedy will be retiring from the Supreme Court this month, we take a look back over his career on the Supreme Court.

Appointment

Kennedy was not Reagan’s first choice to fill vacancy on the SCOTUS when Lewis Powell Jr announced his retirement; he was in fact Reagan’s third choice.

Reagan initially nominated Robert Bork, who was rejected by the Senate by 58-42 votes. Regan’s second nominee Douglas Ginsburg withdrew from the nomination process after he admitted to using marijuana. Having had two failed nominations, the Regan administration undertook an unprecedented level of investigation and vetting of Anthony Kennedy, the third nominee. Kennedy easily passed the background check and his hearing before the Senate Judiciary committee lasted only three consecutive days, after which he was confirmed by a vote of 97-0 (because three Democrats were absent from the vote). He received widespread bipartisan support and “virtually sailed through the confirmation process and was widely viewed by conservatives and liberals alike as balances and fair” (Maureen Hoch, PBS).

Judicial philosophy

Kennedy has been labelled as a ‘swing’ justice, a ‘centrist’ or as a ‘moderate’ and this is mostly a result of the fact that he cannot be easily categorised as a liberal or a conservative. His approach has been one of looking at cases individually and examining the merits of the legal arguments of each, rather than a broad ideological approach of some liberal and conservative justices. Kennedy summed up his philosophy when he explained “The cases swing, I don’t”. As a result of this approach, Kennedy has been the deciding vote in many 5-4 decisions under the Rehnquist and Roberts court.

Abortion

Planned Parenthood of Southeastern Pennsylvania v Casey (1992)

[youtube https://www.youtube.com/watch?v=8x9DQiMsbUA&w=854&h=480]

In a bitter, 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden,” which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the foetus attains viability.” Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. In a rare step, the opinion for the Court was crafted and authored by three justices: O’Connor, Kennedy, and Souter.

Death Penalty

Roper v Simmons (2005)

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In a 5-4 opinion delivered by Justice Anthony Kennedy, the Court ruled that standards of decency have evolved so that executing minors is “cruel and unusual punishment” prohibited by the Eighth Amendment. The majority cited a consensus against the juvenile death penalty among state legislatures, and its own determination that the death penalty is a disproportionate punishment for minors. Finally the Court pointed to “overwhelming” international opinion against the juvenile death penalty.

Gun Rights

District of Colombia v Heller (2008)

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The ban on registering handguns and the requirement to keep guns in the home disassembled or non-functional with a trigger lock mechanism violate the Second Amendment. Justice Antonin Scalia delivered the opinion for the 5-4 majority. The Court held that the first clause of the Second Amendment that references a “militia” is a prefatory clause that does not limit the operative clause of the Amendment. Additionally, the term “militia” should not be confined to those serving in the military, because at the time the term referred to all able-bodied men who were capable of being called to such service. To read the Amendment as limiting the right to bear arms only to those in a governed military force would be to create exactly the type of state-sponsored force against which the Amendment was meant to protect people. Because the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, the operative clause should be read to “guarantee an individual right to possess and carry weapons in case of confrontation.” This reading is also in line with legal writing of the time and subsequent scholarship. Therefore, banning handguns, an entire class of arms that is commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second Amendment.

Campaign Finance

Citizens United v Federal Election Commission (2010)

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The Supreme Court overruled Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC. (In the prior cases, the Court had held that political speech may be banned based on the speaker’s corporate identity.) By a 5-to-4 vote along ideological lines, the majority held that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited. Justice Anthony M. Kennedy wrote for the majority joined by Chief Justice John G. Roberts and Justices Antonin G. Scalia, Samuel A. Alito, and Clarence Thomas. Justice John Paul Stevens dissented, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotamayor. The majority maintained that political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation. The majority also held that the BCRA’s disclosure requirements as applied to The Movie were constitutional, reasoning that disclosure is justified by a “governmental interest” in providing the “electorate with information” about election-related spending resources. The Court also upheld the disclosure requirements for political advertising sponsors and it upheld the ban on direct contributions to candidates from corporations and unions.

Gay marriage

United States v Windsor (2013)

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Justice Anthony M. Kennedy delivered the opinion of the 5-4 majority. The Supreme Court held that the United States Government, despite the executive branch’s agreement regarding DOMA’s unconstitutionality, retains a significant enough stake in the issue to support Supreme Court’s jurisdiction. Because the judgment in question orders the U.S. Treasury to refund tax money, the Government stands to suffer a real economic injury and therefore maintains standing in the case. The Bipartisan Legal Advisory Group (BLAG) presented substantial arguments for the constitutionality of DOMA that reflected an actual controversy under Article III, which allowed the Supreme Court to address the case without needing to decide whether BLAG would have had standing before a lower court. The Court also held that states have the authority to define marital relationships and that DOMA goes against legislative and historical precedent by undermining that authority. The result is that DOMA denies same-sex couples the rights that come from federal recognition of marriage, which are available to other couples with legal marriages under state law. The Court held that the purpose and effect of DOMA is to impose a “disadvantage, a separate status, and so a stigma” on same-sex couples in violation of the Fifth Amendment’s guarantee of equal protection.

Obergefell v Hodges (2015)

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Justice Anthony M. Kennedy delivered the opinion for the 5-4 majority. The Court held that the Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex couples in the same manner as it does to opposite-sex couples. Judicial precedent has held that the right to marry is a fundamental liberty because it is inherent to the concept of individual autonomy, it protects the most intimate association between two people, it safeguards children and families by according legal recognition to building a home and raising children, and it has historically been recognized as the keystone of social order. Because there are no differences between a same-sex union and an opposite-sex union with respect to these principles, the exclusion of same-sex couples from the right to marry violates the Due Process Clause of the Fourteenth Amendment. The Equal Protection Clause of the Fourteenth Amendment also guarantees the right of same-sex couples to marry as the denial of that right would deny same-sex couples equal protection under the law. Marriage rights have traditionally been addressed through both parts of the Fourteenth Amendment, and the same interrelated principles of liberty and equality apply with equal force to these cases; therefore, the Constitution protects the fundamental right of same-sex couples to marry. The Court also held that the First Amendment protects the rights of religious organizations to adhere to their principles, but it does not allow states to deny same-sex couples the right to marry on the same terms as those for opposite-sex couples.

Voting Rights

Shelby County v Holder (2013)

[youtube https://www.youtube.com/watch?v=4-_sAbnI8rE&w=854&h=480]

Section 4 of the Voting Rights Act is unconstitutional. Chief Justice John G. Roberts, Jr. delivered the opinion of the 5-4 majority. The Court held that Section 4 of the Voting Rights Act imposes current burdens that are no longer responsive to the current conditions in the voting districts in question. Although the constraints this section places on specific states made sense in the 1960s and 1970s, they do not any longer and now represent an unconstitutional violation of the power to regulate elections that the Constitution reserves for the states. The Court also held that the formula for determining whether changes to a state’s voting procedure should be federally reviewed is now out-dated and does not reflect the changes that have occurred in the last 50 years in narrowing the voting turnout gap in the states in question.

 Immigration

Trump v Hawaii (2018)

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The Court assumed without deciding that the plaintiffs’ claims are justiciable and held that the Proclamation does not violate the president’s statutory authority or the Establishment Clause. The Court did not resolve the question whether the district court’s global injunction is impermissibly overbroad. Chief Justice John Roberts authored the opinion for the 5–4 majority. The majority first considered Hawaii’s argument that the September 2017 order exceeds the president’s authority under federal immigration laws. Under Section 1182(f) of the Immigration and Nationality Act (INA), the president has “broad discretion” to suspend the entry of non-citizens into the United States. The Proclamation was the result of a “worldwide, multi-agency review” that determined that entry by certain non-citizens would be detrimental to the interests of the United States. Thus, the Proclamation does not exceed any statutory power of the president.

 Trade Unions

Janus v AFSCME (2018)

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In a 5-4 vote, the Court reversed and remanded, holding that the State of Illinois’ extraction of agency fees from non-consenting public-sector employees violated the First Amendment, meaning that Abood v. Detroit Bd. of Education, which held otherwise, was overruled.

In an opinion authored by Justice Alito, the Court began by stating that the district court had jurisdiction over Janus’ suit, as he was undisputedly injured in fact by the state’s agency fee system, and the harm he suffered could be redressed if he prevailed in court.

Moving on to the merits, the Court concluded that the state’s collection of agency fees from non-consenting public employees was a violation of the First Amendment, and that Abood was incorrect in deciding otherwise. The Court stated that requiring individuals to endorse ideas they disagreed with runs counter to First Amendment principles, and that even under a more permissive standard than the “exacting” strict scrutiny that the Court had applied in evaluating the constitutionality of agency fees in the past, the Illinois scheme could not pass muster.