KENNEDY, ANTHONY M. (1936–) (Update)

After spending his first few terms on the Supreme Court as a reliable if nonideological conservative Justice, Anthony M. Kennedy has emerged as a "swing vote" on the rehnquist court. His predecessor, Justice lewis f. powell, jr. , played a similar role on the burger court, but unlike Powell, Kennedy does not tend to stake out intermediate positions on controversial issues. Instead, Kennedy has strong views that happen to place him at the Court's center. In some areas he joins the conservative bloc, consisting of Chief Justice william h. rehnquist, and Justices antonin scalia, clarence thomas, and (on many issues) sandra day o'connor. In other areas, Kennedy joins the moderate-to-liberal bloc, consisting of Justices john paul stevens, david h. souter, ruth bader ginsburg, and stepheng. breyer. The one near-constant is that Kennedy's position commands at least four other votes.

Kennedy's views about the relation between the states and the federal government are illustrative. He has joined the conservative bloc in a string of decisions invalidating federal laws as infringing upon state sovereignty. These cases alternatively invoke the tenth amendment, Printz v. United States (1997); the eleventh amendment, Seminole Tribe of Florida v. Florida (1996); or Congress's limited enumerated powers, united states v. lÓpez (1995), City of Boerne v. Flores (1997); but they consistently display a skepticism toward federal power. Kennedy does not, however, romanticize the states in the way that the other conservatives appear to do. He was the only member of the Court who voted to invalidate both the federal Gun-Free School Zones Act and a state's efforts to impose term limits on members of its congressional delegation, Thornton v. U.S. Term Limits (1995). As he wrote in a concurrence in the latter case: "That the States may not invade the sphere of federal sovereignty is as incontestable, in my view, as the corollary proposition that the Federal Government must be held within the boundaries of its own power when it intrudes upon matters reserved to the States." The driving force behind Kennedy's federalism jurisprudence is neither nationalism nor states ' rights, but an abiding belief in limited government at all levels.

Kennedy's libertarian streak also informs his individual rights jurisprudence. He generally takes an expansive view of freedom of speech rights under the first amendment, although he recognizes a legitimate role for government regulation in cases involving a risk of private monopolization of speech, turner broadcasting system v. fcc (1997), and government-funded speech, rust v. sullivan (1991), NEA v. Finley (1998). The funding "exception" has its limits, though, as Kennedy argued in a (partially) dissenting opinion sympathetic to speakers claiming a right to access to public spaces, even nontraditional spaces such as public airports, international society for krishna consciousness v. lee (1992).

Kennedy's sharpest disagreement with the conservative bloc concerns the role of the Court in enforcing constitutional rights beyond those expressly enumerated in the text, under the doctrine of substantive due process. In planned parenthood v. casey (1992), Kennedy, O'Connor, and Souter jointly authored an opinion reaffirming the "central holding" of roe v. wade (1973). Although the Casey opinion relied in part on the doctrine of stare decisis, it also contained a ringing endorsement of the practice of judicial protection for unenumerated rights. In other contexts as well, Kennedy has disagreed with the claim that the Constitution protects only those rights spelled out in the text or widely accepted at the time of its adoption.

If Kennedy's endorsement of a right to abortion and other unenumerated rights has disappointed conservatives' hopes, they have found his jurisprudence on questions of race more to their liking. He interprets the constitutional requirement of equal protection of the laws to mandate "color-blindness" in nearly all circumstances, and has thus voted to strike down affirmative action programs and electoral districting in which race was the predominant factor in the drawing of district lines.

The principal themes of Kennedy's equal protection jurisprudence—and much of his rights jurisprudence more generally—are inclusion and fairness. Outside the context of affirmative action, this has often led Kennedy to cast liberal votes. For example, in Edmonson v. Leesville Concrete Co. (1991), he found that the Constitution bars race-based peremptory jury challenges, even in civil cases. Kennedy's opinion in that case reflects an extremely expansive view of the doctrine of what constitutes state action, because he saw this approach as necessary to ensure that persons not be denied the opportunity to carry out their duty as jurors simply on the basis of their race. The theme of inclusion also explains his opinion for a 5–4 Court in lee v. weisman (1992). Although Kennedy usually votes to permit significant state accommodation of religion, his opinion in Lee invalidated an official prayer at a public high school graduation. The opinion roundly condemns the suggestion that no violation occurred simply because the students were not required to participate in the graduation ceremony in order to receive their degrees: "to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme," Kennedy wrote.

romer v. evans (1996) may be the apotheosis of Kennedy's individual rights jurisprudence. In that case, the Court addressed a challenge to an amendment to the Colorado constitution prohibiting the state or any of its subdivisions from enacting or enforcing laws protecting homosexuals from discrimination. Without deciding whether governmental discrimination on the basis of sexual orientation is inherently suspect, and without even citing bowers v. hardwick (1986), which upheld the criminalization of homosexual sodomy, Kennedy's opinion in Romer invalidates the Colorado amendment as born of an irrational antipathy towards an unpopular group. Although Kennedy nominally uses the least demanding test for constitutionality under the equal protection clause—the rational basis test—the opinion's great strength (or from the perspective of those who disagree, its glaring weakness), is its extremely sparse use of formal legal categories. inRomer, Kennedy appears to be speaking to the nation at large, explaining why the Colorado amendment offends basic principles of fairness and inclusion, and thus offends the Constitution as well. These principles lie at the center of Kennedy's constitutional vision, and thus at the center of the Rehnquist Court's constitutional vision as well.

Michael C. Dorf
(2000)

Bibliography

Amar, Akhil R. 1997 Justice Kennedy and the Ideal of Equality. Pacific Law Journal 28:515–532.

Edelman, Paul H. and Chen, Jim 1996 The Most Dangerous Justice: The Supreme Court at the Bar of Mathematics. Southern California Law Review 70:63–105.

Friedman, Lawrence 1993 The Limitations of Labeling: Justice Anthony M. Kennedy and the First Amendment. Ohio Northern University Law Review 20:225–262.

Sullivan, Kathleen M. 1992 The Supreme Court 1991 Term—Foreword: The Justices of Rules and Standards. Harvard Law Review 106:22–123.