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.
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.
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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.
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.
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.
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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.
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.”
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.
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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.
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.
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.
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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.
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.
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.
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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.
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:
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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.
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.
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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.
Justice Kennedy delivered the majority opinion of the court in this case.
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