Anthony Mcleod Kennedy

Anthony McLeod Kennedy was appointed as an associate justice of the U.S. Supreme Court in 1988. Kennedy was the third person nominated by President RONALD REAGAN to fill the vacancy created by the retirement of Justice LEWIS F. POWELL JR. As a judicial conservative, Kennedy has generally voted with the conservative justices on the Court, yet he has split from them in significant rulings on ABORTION rights and gay rights.

Kennedy was born in Sacramento, California, on July 28, 1936. He graduated from Stanford University in 1958 and from Harvard Law School in 1961. He practiced law in San Francisco and Sacramento and taught CONSTITUTIONAL LAW at the McGeorge School of Law of the University of the Pacific from 1965 to 1988.

His conservative philosophy and his REPUBLICAN PARTY affiliation led to Kennedy's first judicial appointment. In 1975, President GERALD R. FORD appointed him to the Ninth Circuit Court of Appeals. Kennedy served on the federal appeals court for thirteen years and wrote over four hundred opinions.

A well-respected jurist, Kennedy entered the national limelight after the Senate rejected President Reagan's first nominee for Powell's seat on the Court, Judge ROBERT H. BORK, and Reagan's second nominee, Judge DOUGLAS H. GINSBURG, withdrew following his admission that he had smoked marijuana. Kennedy's confirmation hearings were filled with questions that sought to compare his philosophy to Bork's. Bork had embraced the doctrine of original intent—the idea that a judge should apply the Constitution only in the exact manner intended by the Constitution's Framers—as the only legitimate means of interpretation. Kennedy testified that ORIGINAL INTENT was only a starting point in interpreting the Constitution. In his Senate testimony, Kennedy stated his commitment to the principle of STARE DECISIS. This principle refers to the respect for legal precedent created by prior cases and the need to maintain precedent even if the current judges do not agree with the original ruling.

Kennedy was confirmed in February 1988, with many liberal members of Congress feeling that he was too conservative, and some conservatives believing he was moderate, a compromise candidate who could survive the confirmation process.

Since taking office as associate justice, Kennedy has proved to be both conservative and moderate, depending on the case. He has usually sided with the conservative members of the Court, but he has gained attention by departing from them in two important cases. In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), watchers had expected the Court to overrule explicitly ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, the 1973 decision that defined the right to choose abortion as a fundamental constitutional right. Kennedy joined with Justices SANDRA DAY O'CONNOR and DAVID H. SOUTER in an opinion that defended the reasoning of Roe and the line of cases that followed it.

In 1996 Kennedy wrote a landmark and controversial decision concerning gay rights. In ROMER V. EVANS, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855, Kennedy declared unconstitutional an amendment to the Colorado state constitution (West's C.R.S.A. Const. Art. 2, § 30b) that prohibited state and local governments from enacting any law, regulation, or policy that would, in effect, protect the CIVIL RIGHTS of gay men, lesbians, and bisexuals. Kennedy ruled that the amendment violated the EQUAL PROTECTION CLAUSE of the FOURTEENTH AMENDMENT, noting that the amendment classified gay men

Anthony M. Kennedy.
AP/WIDE WORLD PHOTOS

and lesbians "not to further a proper legislative end but to make them unequal to everyone else," and adding, "This Colorado cannot do."

Although considered a swing vote on closely divided court, Kennedy has authored opinions that enhance states' POLICE POWERS. In Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L.Ed.2d 501 (1997), Kennedy upheld a state law

that permitted the indefinite civil commitment of "sexual psychopath" prisoners who had completed their prison terms. In McKune v. Lile, 536 U.S. 24, 122 S. Ct. 2017, 153 L. Ed. 2d 47 (2002), Kennedy concluded that that states can limit the privileges of prisoners who refuse to divulge their past crimes as part of a therapy program. In addition, he has supported the constitutionality of sex-offender registry lists, compulsory drug testing of public-school students who wish to participate in extracurricular activities, and "three strikes" mandatory-sentencing schemes. In BUSH V. GORE, 531 U.S. 98, 121 S. Ct. 525, 148 L.Ed.2d 388 (2000), Kennedy voted with the majority to bar Florida from conducting a recount of presidential ballots, thereby ensuring the election of GEORGE W. BUSH.

Some U.S. Supreme Court analysts have suggested that Kennedy might be appointed chief justice if William Rehnquist—who was 78 in 2003—chose to retire. While some argue that Kennedy is not liberal enough for liberals, or conservative enough for conservatives, others point out that the centrist views that often make him the swing vote in cases dividing the Court might make him attractive enough to survive the Senate nomination procedure without a major confirmation fight.