Justice Kennedy reflects on his time deciding the Constitution’s promise of liberty and equality
WASHINGTON — Justice Anthony M. Kennedy, the Supreme Court’s most influential member prior to his retirement, has watched quietly for eight years as a new conservative majority took charge.
He was troubled by partisan gerrymandering, but a year after he stepped down, a 5-4 ruling closed the federal courts to challenges to state voting maps that allow one party to rig the elections in its favor.
Though he believed abortion was a moral wrong, he cast the crucial vote in 1992 to uphold Roe vs. Wade and the principle that a woman, not the government, had the right to decide on ending an early pregnancy.
Four years ago, that decision was overturned on a 5-4 vote.
While Kennedy has refrained from commenting on the current court or President Trump, he has written a memoir that tells his life story and explains the reasoning behind the major decisions of his era.
It has become common for the justices to write books, but they steer clear of writing about the work of the court. Kennedy’s book, “Life, Law & Liberty,” is, like the justice, the exception to that rule.
An Irish Catholic from Sacramento and a Reagan Republican, Kennedy had a generally conservative voting record over 30 years on the high court. But he had a distinct view of liberty and justice.
“The nature of injustice is that we may not always see it in our own times,” he wrote in 2015.
Kennedy rejected the “rigid” view that the Constitution’s promises of liberty and equal protection of the law, as well as the protection against cruel and unusual punishment, were limited to their “original” meaning in the Bill of Rights of 1791 or the 14th Amendment of 1868.
After all, slavery and segregation were legal for much of American history, and women were not protected from discrimination by the promise of “equal protection” in the 14th Amendment.
Kennedy remained open to new rights and liberties. The goal, he wrote, was “a decent society in which the Constitution and the rule of law treat all with dignity and equality.”
He was the justice who made the difference in several areas of law, none more significant than in LGBTQ+ rights.
He wrote the court’s four major rulings rejecting discrimination based on sexual orientation. In 2015, he spoke for the 5-4 majority to uphold same-sex marriages nationwide.
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” he wrote. “Many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples.”
They “ask for equal dignity in the eyes of the law. The Constitution grants them that right,” he concluded in Obergefell vs. Hodges.
He also believed that teenagers who commit crimes are not as culpable as adults. He wrote a court opinion in 2005 ending executions for murderers who were under age 18 at the time of their crime.
Five years later, he wrote the court’s opinion holding it was cruel and unusual punishment for judges to impose a sentence of life in prison with no chance for parole for a teenager’s crime that did not involve homicide. In the case before the court, a Florida teen was given a life term for committing an armed robbery and a home burglary prior to his 18th birthday.
Kennedy marked his 90th birthday on Thursday and says his favorite topic of conversation is not the nine justices but his nine grandchildren. He still goes to the court some days and says he is worried by the tone in Washington and around the country.
“It is too partisan and confrontational,” he said in a recent interview with The Times. “I’m concerned that the divisiveness may be reflected at the court.”
Democracy requires “reasoned and respectful debate,” he said, not personal attacks and name calling.
Kennedy may be the last justice of his kind, said Washington University law professor Daniel Epps, a former Kennedy clerk.
“I don’t think we’ll see another justice who is so ideologically unpredictable and who votes against his party of appointment in some of the hugest cases in our lifetimes,” he said. Kennedy emerged from “an appointments process that was less polarized, where there were conservative Democrats and liberal Republicans and a Senate filibuster, which all made it possible for moderates to be appointed.”
While Kennedy describes himself at times as a small-town lawyer from Sacramento, he knew the two California governors, both Republicans, who reshaped the Supreme Court.
Kennedy’s father was a friend of Gov. Earl Warren, and young Tony played with Warren’s children. He also worked as a young page in the state Capitol when Warren was governor.
He was a high school senior in 1954 when Warren, the new chief justice, spoke for a unanimous court to strike down racial segregation in the case of Brown vs. Board of Education.
He and his father agreed the ruling was long overdue. It also provided an early lesson in how justices can uphold the fundamental principles of the Constitution despite intense opposition in much of the nation.
He said he later learned a second lesson. The Brown decision was “a historic step forward” but it “just a beginning” in the fight against entrenched racial injustice.
In writing the same-sex marriage case, Kennedy cited Warren’s opinion in the 1967 case of Loving vs. Virginia which struck down the bans on interracial marriages in 16 states.
As as young lawyer, Kennedy worked on special projects for Gov. Ronald Reagan and admired him greatly. He was just 38 years old when, at Reagan’s behest, he was appointed to the U.S. 9th Circuit Court of Appeals.
As president a decade later, Reagan had appointed Justices Sandra Day O’Connor and Antonin Scalia to the Supreme Court and elevated William Rehnquist to be the chief justice. But his third nominee — Judge Robert Bork — was voted down as too conservative by the Senate.
Reagan invited Kennedy to the White House and offered him the nomination. Kennedy recalled telling Reagan that he and his wife Mary were happy in Sacramento where all their friends and family lived. We don’t know anyone in Washington, he said.
President Reagan gestures toward Judge Anthony M. Kennedy’s family after nominating Kennedy to the Supreme Court in 1987.
(Dennis Cook / Associated Press)
In his best imitation of Reagan’s voice, he recounted the president’s response: “You know me. And you know Nancy.”
Kennedy accepted the nomination and was confirmed in February 1988 by a 97-0 vote, the last justice to win unanimous approval from the Senate.
His three decades on the court were shaped in part by his relationship with Scalia.
Kennedy and his wife bought a house in the same northern Virginia neighborhood where Scalia lived. In their early years on the court, they appeared to be friends and allies.
They broadly supported freedom of speech. To the surprise of many, they cast the deciding votes in 1989 to rule that the 1st Amendment protects the right to burn an American flag in protest.
A year later, Kennedy and Scalia dissented vehemently when the court ruled the Michigan Chamber of Commerce and its corporate supporters could be barred from advertising their support for state candidates.
The decision triggered a decades-long dispute that ended with the Citizens United ruling in 2010. Kennedy spoke for a 5-4 conservative majority to rule that corporations, unions and other groups were free to spend money independently to oppose or support candidates.
But when the court was closely split in major cases, Kennedy was likely to be in majority while Scalia wrote scathing and increasingly personal dissents.
“I would hide my head in a bag,” Scalia wrote in dissent in the same-sex marriage case, rather than join an opinion “couched in a style that is as pretentious as its content is egotistic.”
Kennedy was put off by a different jab. Scalia said the justices do not represent the full country. For example, the court lacks a “genuine Westerner (California does not count),” he wrote.
Since Scalia’s death, his influence has grown especially with the younger generation of conservatives.
Two of Trump’s appointees — Justices Neil M. Gorsuch and Brett M. Kavanaugh — were clerks for Kennedy in 1993, but they are far more likely to cite Scalia and his views on interpreting laws or the Constitution. Justice Amy Coney Barrett, Trump’s third appointee, was a clerk for Scalia.
While Kennedy did not respond to Scalia’s harsh dissents, they hung over their last year together on the court.
One day in early February of 2016, Scalia stopped by Kennedy’s office to talk.
“Nino said he had come to regret deeply the tone of his Obergefell dissent and its personal references. He apologized for being intemperate,” Kennedy wrote. “Neither of us is big on hugging, but we hugged, both of us smiling.”
They agreed to get together for dinner with their wives when he returned from a hunting trip to Texas.
A week later, Scalia’s wife Maureen called to tell them of his death.
“Nino and I spent 28 years on the court together,” Kennedy wrote. “We sometimes agreed and sometimes disagreed, but I respected him and miss him very much.”
