KENNEDY, ANTHONY M. (1936–)

Anthony M. Kennedy has fulfilled the objectives of President ronald reagan in choosing him to fill the vacancy on the Supreme Court created by the retirement of Justice lewis f. powell.

First, President Reagan expected that Kennedy's noncontroversial background would ensure him swift confirmation by the Senate. After graduating from Harvard Law School in 1961, Kennedy had worked as a lawyer and lobbyist in California until President gerald r. ford appointed him to the Ninth Circuit Court of Appeals in 1975. While on the bench, Kennedy, who also taught constitutional law at McGeorge School of Law, evolved as a relatively colorless, nonideological conservative, but gained notoriety for writing the lower court opinion striking down the legislative veto—a result subsequently affirmed by the Supreme Court in immigration and naturalization service v. chadha (1983). In February 1988 the Senate unanimously confirmed Kennedy.

President Reagan also hoped that Kennedy would join Chief Justice william h. rehnquist and Justices byron r. white, sandra day o'connor, and antonin scalia to form a conservative majority that would curtail the initiatives of both the warren court and the burger court. During his first two terms on the Court, Kennedy did in fact cast the crucial fifth vote with these Justices in several 5–4 decisions expanding state control in the fields of abortion, capital punishment, criminal procedure, and civil rights.

However, Kennedy has demonstrated little potential as a leader of the current conservative Justices, others of whom have striven to apply complex interpretative theories to constitutional issues. Instead, Kennedy has emerged as a classically conservative Justice: he has thus far avoided articulating any overarching philosophy of constitutional interpretation and has been reluctant to challenge precedent.

Kennedy's votes support a view of federalism under which the states check federal power and are responsible for matters on which the Constitution provides no clear prohibitions. For example, Kennedy joined Justice Scalia's separate opinion in Pennsylvania v. Union Gas Co. (1989), which would have denied Congress the power to lift the states' eleventh amendment immunity in exercising its legislative powers under Article I. Kennedy also joined Will v. Michigan (1989) and deshaney v. winnebago county department of social services (1989), which effectively held that neither the fourteenth amendment nor section 1983, title 42, u. s. code significantly altered state sovereignty. Similarly, Kennedy maintained in dissent in missouri v. jenkins (1990) that by upholding a federal court order commanding a school district to impose a tax, the majority impermissibly expanded federal court power at the expense of "fundamental precepts for the democratic control of public institutions."

Kennedy's opinions reflect his belief in a living constitution that recognizes, even against claims of individual liberties, the need for government to adapt to changes in technology and its responsibilities. For example, in skinner v. railway labor executives association (1989) and treasury employees union v. von raab (1989) Kennedy explained that the fourth amendment did not preclude drug testing of railway workers after railroad accidents and of customs workers when there was no individualized suspicion and no evidence of drug abuse in the customs service. Similarly, Kennedy rejected first amendment challenges to a municipal regulation in Ward v. Rock Against Racism (1989) that required performers at an outdoor theater to use the city's sound system and technician, even though the requirement restricted certain speakers and messages.

Kennedy's hesitancy to reverse or to expand precedent reflects his preference for deciding cases on the narrowest available grounds and to affect settled doctrine as little as possible. Accordingly, in Saffle v. Parks (1990) Kennedy read precedents narrowly in order to deny federal habeas corpus relief because the respondent had raised a new legal claim that could not be applied retroactively on collateral review. Kennedy also hewed closely to precedent in Barnard v. Thorstenn (1989) in holding that residency requirements for admission to the Virgin Islands bar violated the privileges and immunities clause of Article IV.

in webster v. reproductive health services (1989), Kennedy refused to join Justice Scalia's concurrence urging overruling of roe v. wade (1973), but joined Chief Justice Rehnquist's plurality opinion that rejected the trimester analysis used by the Roe Court for measuring the importance of the state's interest. Similarly, in city of richmond v. j. a. croson co. (1989) Kennedy refused to join Justice Scalia's concurrence challenging a city's setaside of public funds for minority contractors, as well as the congressional program on which it was modeled, which had been upheld in fullilove v. klutznick (1980). Kennedy's concurrence emphasized that Fullilove posed a difficult but separate issue concerning the scope of congressional power under section 5 of the fourteenth amendment.

in patterson v. mclean credit union (1989), Kennedy narrowly reaffirmed runyon v. mccrary (1976). Although the Runyon Court had applied 42 U.S.C. section 1981 to restrict racial discrimination in private school admissions, Kennedy refused to apply the statute's prohibitions of discrimination in the "formation" or "making" of contracts to racial harassment in the conditions of employment.

Dissenting in James v. Illinois (1990), Kennedy reluctantly accepted precedents imposing the exclusionary rule on the states, but suggested the rule should not have been applied to prevent the prosecution from using illegally obtained evidence to impeach the defendant and other defense witnesses in a criminal trial. Similarly, in Jones v. Thomas (1989), Kennedy acknowledged, but refused to extend, the traditional double jeopardy prohibition (against multiple sentences for the same offense) to preclude the petitioner's continued confinement under a longer sentence after he had completed a commuted sentence imposed for the same offense. He also explained in washington v. harper (1990) that the involuntary administration of antipsychotic drugs to a violent prisoner comported with both substantive due process and procedural due process.

However, in his dissent in county of allegheny v. aclu (1989), Kennedy urged abandoning the Court's traditional test in establishment clause cases. He argued that the Court's test separated church and state more than the Framers intended.

The major exception to Kennedy's narrow construction of individual rights is his concurrence in texas v. johnson (1989), in which the Court held 5–4 that the First Amendment protected flag burning as political speech. Kennedy explained that "the flag protects even those who would hold it in contempt."

Kennedy's steadfast refusal to offer a sophisticated alternative to the grander constitutional visions of his fellow conservatives may foretell a modest role for him. Ironically, such a role would reflect Kennedy's vision of the Court's modest role in a system governed by traditional notions of federalism.

Michael J. Gerhardt
(1992)

(see also: Flag Desecration; Fourteenth Amendment, Section 5 (Framing); Fourteenth Amendment, Section 5 (Judicial Construction).)

Bibliography

Chemerinsky, Erwin 1989 Foreword: The Vanishing Constitution. Harvard Law Review 103:43–104.

Maltz, Earl M. 1990 The Prospects for a Revival of Conservative Activism in Constitutional Jurisprudence. Georgia Law Review 24:629–668.