Anthony M. Kennedy

1988-

ANTHONY MCLEOD KENNEDY was born July 23, 1936, in Sacramento, California, and lived there nearly all his life before being appointed to the Supreme Court. His father, Anthony J. Kennedy, had worked on the docks and put himself through the University of California, graduating from law school in 1927. He moved to Sacramento to take his first job as executive secretary to Gov. James Rolph. After working in state government for several years, he began a private law practice. A typical part of a Sacramento law practice in those days was lobbying the state legislature; however, it was only in session a few months of the year, and most of the elder Kennedy's practice involved conventional legal work.

Kennedy's mother, Gladys McLeod Kennedy, known by her childhood nickname "Sis," graduated from Stanford University in 1928 and taught school in San Francisco for two years before moving to Sacramento to take a job as a secretary in the California Senate. There she met her future husband, whom she married in 1932. The best man at the wedding was the groom's law school classmate Roger Traynor, who later became a highly influential chief justice of California. Throughout her long life, Sis Kennedy was a leader in Sacramento civic activities.

Young Anthony was the middle of three children. In those days Sacramento and its legal community were fairly small. Through his father, Kennedy grew up knowing Earl Warren, the future chief justice of the United States, and other prominent California politicians. Starting at age eleven and continuing for five years, Kennedy held a job after school as a page boy for the state Senate. He later worked in his father's law office, proofreading wills and sitting at counsel table while his father tried cases.

After graduating from high school, Kennedy went to Stanford University, where he was elected to Phi Beta Kappa and received an A.B. in 1958. He spent his final undergraduate year at the London School of Economics and to this day remains something of an Anglophile. He attended Harvard Law School, where he served on the board of student advisers, and received a J.D. cum laude in 1961.

Kennedy began his law practice as an associate of the San Francisco law firm Thelen, Martin, Johnson, and Bridges, which then had twenty-two lawyers. He took a leave of absence during his first year to serve on active duty in the Army National Guard. In 1963 his father died suddenly, and Kennedy returned to Sacramento to take over the practice. For the next twelve years, he pursued a general law practice, including litigation and corporate work for small businesses, as well as lobbying and state administrative practice.

In 1963 Kennedy married Mary Davis, a Sacramento native he had known since childhood. Davis received her undergraduate degree from the University of California and a masters degree in education from Stanford University. For many years she worked as a teacher and librarian in the Sacramento public schools. The Kennedys have three children, Justin, Gregory, and Kristin, all of whom attended Stanford. Gregory is also a graduate of Stanford Law School.

Starting in 1965 Kennedy taught constitutional law on a part-time basis at the McGeorge School of Law of the University of the Pacific. He was a popular instructor, and his three-hour Monday night classes were well-subscribed. His approach to teaching constitutional law was largely historical, and he devoted a substantial part of the course to cases decided under the Commerce Clause of the Constitution.

After Ronald Reagan was elected governor in 1966, Kennedy came to know him in the course of doing personal legal work for members of his staff. Reagan asked Kennedy to draft an amendment to the state constitution to impose permanent limits on the taxing and spending powers of the state government. Kennedy worked closely with the governor in developing and promoting this proposal, which was submitted in 1973 as a ballot initiative known as "Proposition 1.'' Although this initiative was defeated, it paved the way for the later success of the "Proposition 13" tax limitation initiative.

In 1974 an opening occurred on the U.S. Court of Appeals for the Ninth Circuit. Kennedy was recommended for the job by Reagan and selected by President Gerald Ford at a time when Ford still hoped to dissuade Reagan from a Republican primary challenge. Even though Reagan continued his fight for the nomination, Ford did not withdraw Kennedy's nomination. Kennedy was confirmed by the Senate in April 1975. At thirty-eight, he was the youngest federal appeals judge in the country when appointed to the bench.

At the time Kennedy joined the court, the Ninth Circuit had thirteen active judges. He maintained his chambers in Sacramento, but traveled often to San Francisco, Los Angeles, and other cities to hear cases. During President Jimmy Carter's administration the Ninth Circuit was expanded to twenty-three judges and dominated by liberal appointees. Kennedy became a leader of the conservative judges, but he also developed friendly relations with the new appointees.

Kennedy's record as a Ninth Circuit judge was conservative but not confrontational. His opinions were written narrowly and avoided sweeping pronouncements on constitutional or political theory. Among his most significant opinions was Chadha v. Immigration and Naturalization Service (1980), which held unconstitutional a one-house legislative veto provision under which Congress asserted the power to overturn an executive branch decision to suspend the deportation of an alien. The U.S. Supreme Court upheld the ruling three years later on much broader grounds, effectively overturning in one stroke more provisions in more federal laws than it had invalidated in its entire history. American Federation of State, County, and Municipal Employees v. State of Washington (1985) was the first major case on the theory of "comparable worth." Kennedy's opinion rejected the argument that federal law required employers to pay the same for jobs predominantly held by women as for different jobs involving "comparable" qualifications that were held predominantly by men. In Beller v. Middendorf (1980) his opinion upheld navy regulations prohibiting homosexual conduct. Kennedy's opinion did not reject the idea that the Constitution could provide some protection for sexual privacy in other contexts.

By 1987 Kennedy's mentor, Ronald Reagan, was president, and Justice Lewis F. Powell, Jr., had retired. The Senate had just rejected Judge Robert Bork, after one of the most contentious confirmation fights in U.S. history. Kennedy was at the top of a short list of potential nominees, as a conservative jurist who had not made enemies or written the sort of controversial opinions and articles that had been used against Bork. At the last minute, however, the president was persuaded by a group of hard-core Bork partisans in the Senate to nominate Douglas Ginsburg, a former Harvard law professor and Justice Department official who had recently been appointed to the Court of Appeals for the District of Columbia Circuit. The Ginsburg nomination lasted nine days and was withdrawn after various controversies arose, including revelations about past marijuana use.

Thus, by November the short list was down to one name, and on November 30, 1987, Reagan nominated Kennedy. His confirmation hearings were an amicable contrast to the combative Bork hearings. The senators did not ask the same sort of probing questions, and they allowed Kennedy to answer with soothing generalities. Many Bork critics spoke favorably about Kennedy, apparently to assure the public that they were not reflexively anti-conservative. He was perceived by liberals and moderates as more pragmatic and open-minded and less ideological than Bork. Ironically, his toughest inquisitor proved to be conservative Republican senator Gordon Humphrey. Kennedy was confirmed by a unanimous vote of the Senate February 3, 1988.

An experienced federal judge, Kennedy was immediately comfortable with the work of the Supreme Court. His opinions there are generally consistent with the record he compiled on the court of appeals. Among his significant early opinions were those upholding the constitutionality of workplace drug testing. In Skinner v. Railway Labor Executives Association (1989), he found constitutional the Federal Railroad Administration's requirement that railroad workers be tested for drug and alcohol use after major accidents, on the grounds that the government has a compelling interest in public safety and does not need a warrant for this type of "search." The same year, he wrote the opinion in National Treasury Employees Union v. Von Raab upholding the U.S. Customs Service's requirement that its employees be tested for drug use when they apply for promotions to jobs that involve drug-interdiction activities or require them to carry firearms. Such a "search" without a warrant or any particularized suspicion of an employee was justified, he reasoned, by the government's interest in the integrity of the law enforcement process.

It surprised some conservatives when Kennedy (along with Justice Antonin Scalia) joined the opinion of Justice William J. Brennan, Jr., in Texas v. Johnson (1989), which held that flag burning is symbolic speech protected by the First Amendment. On the touchy subject of abortion, Kennedy--along with Sandra Day O'Connor and David Souter--appears to be carving out a middle ground. The three wrote the Court's opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which upheld a woman's right to an abortion while permitting certain state regulations. However, Kennedy generally has participated in the Supreme Court's conservative trend, particularly on criminal law issues. For example, he wrote a significant opinion restricting prisoner abuse of federal habeas corpus petitions in McCleskey v. Zant (1991).

Kennedy's tenure on the Court thus far suggests that his mild, friendly manner is a potent tool for building majorities. His tendency to eschew broad, dramatic interpretations of the law also has attracted adherents to his opinions, notably the more liberal Harry Blackmun in the drug-testing cases. Chief Justice William Rehnquist has appeared to use Kennedy as a bridge-builder often enough to win him the appellation "Rehnquist's lieutenant."

Through his friendly disposition, Kennedy has made the Supreme Court a more pleasant place for its staff and visitors. He has earned the reputation as a down-to-earth, accessible justice who takes his staff out to see Shakespeare plays and has photographed tourists (who may or may not have recognized him) in front of the Court. One former clerk attributes Kennedy's charm to his "utter lack of pretentiousness." Despite his reputation for sobriety and seriousness, Kennedy once displayed his sense of humor by delivering a speech on the Constitution before the Federal Bar Association dressed as James Madison.

When he is not performing the time-consuming tasks of his office, Kennedy enjoys reading books of all kinds, particularly history and English literature. He also displays a strong interest in Supreme Court history and frequently quizzed Justice Brennan about the distinguished jurists he served with during his long tenure. Kennedy remains a devout adherent to the Roman Catholic faith in which he was raised. He enjoys a variety of recreational sports, including tennis, golf, swimming, jogging, and bicycling, but he is not particularly avid about any of them.

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03/02/2000 14:51