Anthony M. Kennedy (1936– )

When Justice Lewis Powell, Jr. resigned from the U.S. Supreme Court, federal court of appeals judge Anthony Kennedy became President Ronald Reagan’s third appointment to fill the vacancy. Although Kennedy may have been President Reagan’s third choice, most commentators consider it in retrospect to have been his best.

Justice Kennedy has been praised for his competence, impartiality, and collegiality. His voting record has generally been conservative, but his opinions tend to be narrowly drafted, avoiding ideological extremes. However, he has occasionally voted with the liberal block and has joined with moderates in forming a coalition that frequently determines the outcome of close decisions. Kennedy has been assigned to write the opinion of the Court in some of the most important cases in recent school law history. This entry summarizes his life and court contributions.

Early Years

Anthony M. Kennedy was born on July 23, 1936, in Sacramento, California. His father was a lawyer and lobbyist at the state capital, and his mother worked as a secretary for the California Senate. As a young boy, Anthony served as a page in the California Senate and worked in his father’s law office. In high school, he was a model student who made the honor roll and was an altar boy for his Roman Catholic parish church.

Kennedy enrolled at Stanford University, where he majored in history and political science. At Stanford, he was elected to Phi Beta Kappa and completed his requirements for graduation in three years. He spent the last year of his studies attending the London School of Economics. Kennedy was then accepted to Harvard Law School, where he graduated cum laude in 1961.

After graduating from law school, Kennedy returned to California, where he briefly was employed for a San Francisco law firm. Two years later, when his father died, Kennedy returned to Sacramento to take over his father’s law practice. Like his father, Kennedy became an influential lobbyist. He also pursued his academic interests by teaching constitutional law at McGeorge School of Law at the University of the Pacific. At this time, he married a childhood friend, Mary Davis.

While a lawyer and lobbyist, Kennedy developed friendships with important officials such as future U.S. attorney general and aide to Ronald Reagan, Edwin Meese. When Reagan became governor, he recruited Kennedy to help draft a tax-limitation amendment to the state constitution known as Proposition 1. While the initiative failed, it helped lay the foundation for success of its successor, Proposition 13.

On the Bench

Governor Reagan was impressed with Kennedy, and when a vacancy opened on the U.S. Court of Appeals for the Ninth Circuit, Reagan recommended Kennedy for the seat. President Gerald Ford followed Reagan’s recommendation, and at the age of 38, Kennedy became the youngest federal appellate court judge in the nation. Kennedy served as a judge on the Ninth Circuit for the next 13 years. Although a conservative on what many regarded as the most liberal circuit, Judge Kennedy developed a reputation for having an open mind and deciding cases based on the immediate facts and the law.

In 1987, when swing vote Justice Lewis Powell, Jr. announced his retirement from the Supreme Court, Judge Kennedy was on President Reagan’s short list of potential nominees. However, Reagan was persuaded to nominate as Powell’s replacement the outspoken conservative, Judge Robert Bork. Following one of the most contentious hearings in history, Bork’s nomination was defeated by the U.S. Senate. Reagan’s next selection was another staunch conservative, Judge Douglas Ginsburg. After Ginsburg withdrew his name from consideration following allegations of marijuana use, Reagan turned to Kennedy. In contrast to the tension-filled confirmation hearings for Judge Bork, Kennedy’s hearings were relatively low key. Kennedy appeared to be more moderate and personable than Bork, and his nomination was unanimously approved by the Senate.

Justice Kennedy’s experience as an appellate court judge served him well once he took his seat on the Supreme Court. He easily fit into the Court’s routine and soon was assigned opinions in important cases. As the 1997–1998 Term concluded, Kennedy wrote the majority opinion in Burlington Industries v. Ellerth (1988) where the Court held that under Title VII, an employee who refuses a supervisor’s unwelcoming and threatening sexual advances, yet suffers no adverse, tangible job consequences, may recover damages from the employer without showing that the employer was negligent or otherwise at fault for the supervisor’s actions. Justice Kennedy’s voting pattern began to emerge. Often he was, like Powell, the decisive swing vote. Kennedy tended to side with the conservative wing of the Court. However, he occasionally joined with liberals in cases such as Texas v. Johnson (1989), where, in spite of his personal beliefs, he concurred with Justice Brennan’s decision that flag burning was a protected form of symbolic speech.

Kennedy disappointed conservatives by his refusal to vote to overrule Roe v. Wade (1973). In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), he joined with Justices Sandra Day O’Connor and David Souter in authoring the plurality opinion that upheld most of the state’s restrictions on abortion but left the principle of a constitutional right to abortion intact.

In race discrimination cases, Kennedy’s vote has been more predictably conservative. For example, in City of Richmond v. J. A. Croson Co. (1989) and Adarand Constructors, Inc. v. Pena (1995), he voted against minority set-aside and preference programs in the construction industry.

School-Related Opinions

Kennedy authored the opinion of the Supreme Court in Freeman v. Pitts (1992), determining that federal courts could incrementally release control of formerly segregated schools on a step-by-step basis, even if unitary status had not been achieved in all areas. In the two University of Michigan disputes, Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003), he voted that race-conscious admissions policies were unconstitutional for law school and undergraduate students, respectively.

In First Amendment Establishment Clause cases, Kennedy has generally taken an accommodationist position. In two recent cases involving public displays of the Ten Commandments, Van Orden v. Perry and McCreary County, Kentucky v. American Civil Liberties Union of Kentucky (2005), he upheld both displays as constitutional.

Justice Kennedy supported decisions upholding government assistance to parochial schools, such as providing for sign-language interpreters, remedial instruction, audiovisual equipment, and school vouchers. Additionally, he voted to grant access by student religious organizations and community church groups to public school facilities. Kennedy wrote the majority opinion in Rosenberger v. Rectors and Visitors of the University of Virginia (1995), noting that the denial of student activity funds to support the printing of a Christian newsletter violated freedom of speech.

Kennedy demonstrated his independence in Lee v. Weisman (1992) as he cast the deciding vote and authored the majority opinion holding that a nonsectarian prayer at a public middle school graduation ceremony where school officials selected the minister and issued guidelines was unconstitutional. Kennedy also joined in the Court’s decision in Santa Fe Independent School District v. Doe (2000) striking down student-led prayers over the public address system at high school football games. Applying a coercion test that he believed should have been the proper standard in Establishment Clause cases, Kennedy found that the prayers were not truly voluntary.

In First Amendment Free Exercise cases, Kennedy joined in the majority in Employment Division, Department of Human Resources of Oregon v. Smith (1990), pointing out that granting a special exemption to Native Americans to use peyote in religious ceremonies was not required when a state criminal law that was neutral on its face and of general applicability prohibited such usage. When Congress, in response to Smith, enacted the Religious Freedom Restoration Act (RFRA) restoring the balancing test of Sherbert v. Verner (1963), Justice Kennedy wrote for the Court in City of Boerne v. Flores (1997), ruling that RFRA was an unconstitutional attempt by the legislature to assume the power reserved to the judiciary of interpreting the Constitution.

In students’ right cases, Kennedy usually sides with school authorities. He voted to uphold random drug testing of student athletes and participants in extracurricular activities in Vernonia School District 47J v. Acton (1995) and Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002). In Owasso Independent School District No. 1011 v. Falvo (2002), writing for the Court, Justice Kennedy ruled that teachers’ use of peer-grading of assignments by students did not violate the Family Educational Rights and Privacy Act (FERPA).

In cases involving the rights of those who are gay, Kennedy’s voting record has been mixed. In Boy Scouts of America v. Dale (2000), he joined in the Supreme Court’s opinion holding that as a private organization, the Scouts had the right to exclude a gay scoutmaster from membership, because accepting him would have derogated its express membership requirements. Yet, he authored the Court’s opinion in Romer v. Evans (1996), determining that an amendment to the Colorado state constitution denying heightened legal protection from discrimination to persons because of their sexual orientation violated the Equal Protection Clause of the Fourteenth Amendment. Kennedy also wrote for the majority in Lawrence v. Texas (2003), striking down as unconstitutional a state statute criminalizing homosexual conduct between consenting adults.

Justice Kennedy’s performance on the Court has been criticized by some who claim he has no philosophical base and often decides cases with no consistent rationale. However, many commentators praise him for his deliberate consideration of the unique circumstances of each case and for his tendency not to reach conclusions based on a preconceived ideological disposition. Kennedy has already written opinions in several landmark cases. With the make-up of the Court apparently shifting to the right, Kennedy’s moderate brand of conservatism will likely continue to make his a decisive vote and place him in a position to be even more influential in education law in the future.

Michael Yates

See also Rehnquist Court

Further Readings

  • Lazarus, E. (2005, November 14). The Court’s new swing vote: Kennedy center. The New Republic, 233, 16–17. 
  • Urofsky, M. I. (Ed.). (2006). Biographical encyclopedia of the Supreme Court: The lives and legal philosophies of the justices. Washington DC: C. Q. Press. 

Legal Citations