The Supremes' Next Swing Man
The court's fresh lineup may leave Anthony Kennedy as the man in the middle
Nearly 18 years ago, California appeals court Judge Anthony Kennedy was President Reagan's third choice for a vacancy on the U.S. Supreme Court, a safe pick who breezed through Senate hearings following the debacle of the Robert Bork nomination and the withdrawal of Douglas Ginsburg after he admitted to having used marijuana as a young man.
Initially a reliable conservative, Kennedy, along with fellow Reagan appointee Sandra Day O'Connor, became a pivotal swing vote on a range of emotionally charged cultural issues from gay rights to affirmative action. In the process, Kennedy often found himself on the receiving end of attacks from disappointed conservatives.
Now, with O'Connor about to retire and conservative Judge Samuel Alito nominated to replace her, the influential, middle-of-the-road pair some dubbed "O'Kennedy" is about to break up. And Kennedy, the serious but unpretentious judge from Sacramento, is on the verge of standing alone as the most influential voice--the potential fifth vote--on a deeply divided court.
Though Kennedy, a fit and vigorous 69, scoffs at the notion of his heightened influence--"the court has much more . . . consistency than you think," he said last week--he will be the man in the middle, especially if Chief Justice John G. Roberts proves as conservative as advertised. With Roberts and Alito, if confirmed, expected to align with conservative Justices Antonin Scalia and Clarence Thomas, and the liberal wing solid with Justices John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer, Kennedy could hold the key to decisions ranging from separation of church and state to abortion.
Kennedy's record, though more conservative than O'Connor's, is difficult to pigeonhole. He was the crucial fifth vote in the court's 1992 Casey decision, which reaffirmed a woman's right to an abortion, but he wrote an impassioned dissent in 2000 to the court's decision to declare unconstitutional Nebraska's ban on late-term abortions. Two years ago, Kennedy wrote the majority opinion that struck down a Texas law barring same-sex sodomy, but in that same opinion he wrote that the decision does not give formal recognition to "any relationship" gay people seek to enter.
Steady hand. Kennedy continues to take his licks, especially for citing foreign law in his opinions; Scalia once wrote that such discussion is "meaningless dicta." Kennedy is respected, however, for having an open mind and for moving deliberately. "He is one of the most reasonable men that I have watched in public service," said former Attorney General Janet Reno.
Kennedy acknowledges that he sees an inherent contradiction in the law. "There's a dichotomy in the law, a tension, a duality," Kennedy told a group of lawyers and scientists last week. Jurists seek "standards . . . general rules . . . overall classifications." Yet those same jurists, he said, must "reach for individuality." How Kennedy balances those often-competing interests will almost certainly have a profound impact on how the court rules on some of the most important issues of our time.
Deciding on a Case-by-Case Basis
Justice Anthony Kennedy has, at times, been at opposite ideological ends of a deeply divided Supreme Court. Two examples:
Lawrence v. Texas, 2003. The court struck down as unconstitutional a criminal prohibition of same-sex sodomy. Kennedy wrote for the majority.
"The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty ... gives them the full right to engage in their conduct without intervention of the government."
Stenberg v. Carhart, 2000. The court nullified a Nebraska law criminalizing late-term abortions. Kennedy dissented.
"The decision nullifies a law expressing the will of the people of Nebraska that medical procedures must be governed by moral principles having their foundation in the intrinsic value of human life, including life of the unborn. ...The state chose to forbid a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life."
This story appears in the November 21, 2005 print edition of U.S. News & World Report.