Some weeks, a soft-spoken senior citizen from Sacramento can be the most powerful man in Washington.
This was one of those weeks, as Associate Justice Anthony Kennedy Wednesday wrote the Supreme Court opinion striking down the death penalty for convicted murderers under age 18.
Twenty-four hours later, during the court’s argument over the Texas Ten Commandments case, Kennedy gave a defense for allowing the display of religious symbols on state property.
As 1987 began, destiny didn’t seem to have marked Kennedy for a powerful role in shaping American law. But Robert Bork’s lack of preparation for his Senate confirmation hearings and Douglas Ginsburg’s pot-smoking history forced President Reagan’s aides to resort to their third-string candidate, a federal judge and a law professor at the University of the Pacific in Sacramento.
Lessons of Bork and Ginsburg
A lesson in this for presidents and those who help them select Supreme Court nominees: when your first candidate fails, and your second surprises you with an awkward episode from his past, you can end up with someone whose decisions you’ll live to regret for 20 years and more.
One of the most conservative presidents in American history wound up placing on the high court a judge who turned out to be in some cases — from the conservative perspective —alarmingly liberal.
Kennedy is the same age, 68, as his frequent antagonist, Justice Antonin Scalia. Given current longevity on the court, both are likely to serve for another 15 years.
While Scalia is the more flamboyant and polemical opinion writer, Kennedy’s views have prevailed over Scalia’s, because Kennedy more often has the votes and Scalia does not.
Especially on the issues of abortion, gay rights and the death penalty, Kennedy aligns himself with the court’s liberal wing of John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. They formed the majority in Roper v. Simmons, this week’s death penalty decision.
Occasionally, as in the 1992 decision Planned Parenthood v Casey, which upheld the Roe v. Wade legal abortion policy, Justice Sandra Day O’Connor joins with Kennedy to uphold the liberal status quo.
Sometimes a conservative
But on other issues, Kennedy has helped form a five-justice conservative majority.
For example, Kennedy joined with the conservatives to strike down part of the 1994 Violence against Women Act.
Kennedy agreed with Chief Justice Rehnquist that crimes against women within a state have nothing to do with interstate commerce, which was Congress’s basis for passing the law.
But Kennedy is likely to be remembered most for his gay rights decisions, first in Romer v. Evans in 1996, in which he ruled states couldn’t ban local ordinances extending rights to gays and lesbians.
Two years ago in Lawrence v. Texas, Kennedy, writing for a six-justice majority, declared state sodomy laws a violation of the Fourteenth Amendment to the Constitution.
Although the case dealt only with sodomy laws, Kennedy broadened the scope of the discussion, raising a red flag for foes of same-sex marriage when referred at one point to marriage and child-rearing, declaring, “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”
Paul Smith, the lawyer who won Lawrence v. Texas with his argument before the court, said Kennedy’s ruling has “very strong language that can be used in the future to attack other forms of discrimination” against gays and lesbians.
Scalia’s dissent accused Kennedy of setting the stage for a Supreme Court ruling telling states they must validate same-sex marriages, even if state law or the state constitution bans same-sex marriages.
A professor's approach
Assessing Kennedy’s career, Pepperdine University law professor Doug Kmiec, who served as an official in the Justice Department during the Reagan administration, said, “His approach to constitutional questions reflects his many years of giving classroom instruction in constitutional law. He is not content with formal doctrine; he asks probing questions about why a doctrine exists and whether it remains faithful to original constitutional purpose.”
He added, “Most importantly, and most controversially, he has a commitment to the universal. His opinions in Casey, Lawrence and Roper all reflect his exploration of what it means to be a human person. His conclusions are quite liberal on this score and this puts him at odds with a more consistently conservative and formal approach.”
Kmiec said that if there is a flaw in Kennedy’s approach, “it is not his willingness to ask hard questions about the meaning of text or past precedent, it is that he finds it too easy to give these provisions his best assessment of meaning, when, in fact, the Framers left these intractable problems to the people to work out in legislative assembly.”
To the non-legal scholar it may seem as if Kennedy, having staked out a position on abortion or religion, sometimes tacks in the opposite direction in order to not appear doctrinaire.
Dissent on partial-birth abortion
For instance, after helping write the Casey decision upholding abortion rights, Kennedy issued a passionate dissent eight years later when the justices struck down Nebraska’s ban on the procedure known as partial-birth abortion.
Kennedy included an excruciating description of that procedure and said, “The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn limb from limb.”
He denounced partial-birth abortion as “a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life.”
In religion cases, Kennedy has steered carefully and not always predictably. He wrote the majority opinion in Lee v. Weisman in 1992, which told public school principals they could not allow rabbis, ministers or priests to recite a prayer at a graduation ceremony.
Kennedy declared that having a rabbi recite a prayer created a coercive environment for students.
The following year he wrote the court's opinion striking down Hialeah, Fla. ordinances which banned a Santeria church from using animal sacrifice in its rituals. The First Amendment does not allow government to single out one religion or sect for regulation, he said. The Hialeah laws were “an impermissible attempt to target petitioners and their religious practices,” Kennedy wrote.
On Thursday Kennedy was back as defender of religion. In his grilling of the lawyer seeking removal of the Ten Commandments monument from state property, Kennedy stressed the word “obsessive” when he complained about “an obsessive concern with references to religion” in public places.
The plaintiff, he groused, was “asking religious people to surrender their beliefs.”