Hi, and welcome back to Legal Geek. This week, we take a look at the 30 year history of Justice Kennedy on the Supreme Court, as he steps aside following this past term.
https://archive.org/details/LegalGeekEp141
Unlike many justices, including Justice Scalia who we profiled a couple years ago, Kennedy will go down in history as a critical swing vote who truly charted the course of many major decisions as the law has developed in the courts over the past 3 decades. But let's start at the beginning, which was an interesting circumstance for how Kennedy even ended up on this court.
Kennedy was a graduate of Stanford University and Harvard Law School, and after a few years in private law practice he was appointed to serve as a judge on the 9th Circuit Court of Appeals in his home state of California. A decade later, he was nominated by President Reagan in 1987 to be the third choice to fill a seat on the Supreme Court, after the first two nominees Robert Bork and Douglas Ginsburg were voted down and withdrew from consideration. He was such a better nominee than those peers that he sailed through confirmation with a 97-0 vote at the Senate. So this bit of a happy accident led to what became a 30-year run on the highest court in the land.
Kennedy was fairly conservative overall and sided with those judges more than with liberal judges, but he had many libertarian beliefs that would cause him to sometimes disagree with his fellow conservatives or moderate their opinions. This led to him being a swing vote for much of his career at the court, and involvement in many critical and historic decisions of the court. For example, Kennedy was in the majority in 5-4 opinions 346 times during his tenure, compared to being in the minority of a 5-4 decision only 126 times.
Some of his most important decisions include co-authoring the Planned Parenthood v. Casey decision in 1992 that affirmed Roe v. Wade and the right to have abortions. Kennedy was also the deciding vote in the Bush v. Gore 2000 case that ended the recount and effectively awarded the presidency officially to George W. Bush. Another important opinion by Kennedy was in Roper v. Simmons, which outlawed as unconstitutional the death penalty for crimes committed before the defendant turns 18.
While all of these were seminal and important moments where Kennedy spoke on behalf of a 5-4 split in the Court, his primary legacy will be in two areas: LGBT rights and First Amendment protections. This makes sense, as his libertarian views often put him right in the middle on these issues, and he was able to craft quite a legacy in both areas.
Relative to LGBT rights, his first major opinion in the mid-90's was in Romer v Evans, in which the Court struck down a Colorado constitutional amendment denying protected class status to LGBT individuals. In 2003, he authored the Court's opinion in Lawrence v. Texas, finding a Texas law prohibiting sodomy as unconstitutional. Then he made an even bolder move in the 2013 U.S. v. Windsor case where he held the Defense of Marriage Act, which defined marriage as only between a man and a woman, as unconstitutional. That led to his crowning achievement, the 2015 Obergefell v. Hodges decision that recognized a constitutional right to same-sex marriage. Under Kennedy's tenure, the Court went from stopping outright discriminatory laws against LGBT to recognizing fundamental rights of those same people.
Perhaps an even greater legacy will be left in First Amendment practice, where Kennedy was always expansive in his readings of the protections offered by this constitutional amendment. Almost every year Kennedy drafted 1 or more opinions based on his views of the First Amendment, including the recent Trump v. Hawaii case that we covered last week for the 2018 term. Last year he authored the Matal v. Tam trademark case that removed the Lanham Act's ban on disparaging trademarks as being improper viewpoint discrimination by the government under the First Amendment. Most notable in this field was the 2010 decision in Citizens United v. Federal Elections Commission, which freed corporations and unions from the limits previously applied to how much money these organizations can spend on political advertising.
Unlike many justices, including Justice Scalia who we profiled a couple years ago, Kennedy will go down in history as a critical swing vote who truly charted the course of many major decisions as the law has developed in the courts over the past 3 decades. But let's start at the beginning, which was an interesting circumstance for how Kennedy even ended up on this court.
Kennedy was a graduate of Stanford University and Harvard Law School, and after a few years in private law practice he was appointed to serve as a judge on the 9th Circuit Court of Appeals in his home state of California. A decade later, he was nominated by President Reagan in 1987 to be the third choice to fill a seat on the Supreme Court, after the first two nominees Robert Bork and Douglas Ginsburg were voted down and withdrew from consideration. He was such a better nominee than those peers that he sailed through confirmation with a 97-0 vote at the Senate. So this bit of a happy accident led to what became a 30-year run on the highest court in the land.
Kennedy was fairly conservative overall and sided with those judges more than with liberal judges, but he had many libertarian beliefs that would cause him to sometimes disagree with his fellow conservatives or moderate their opinions. This led to him being a swing vote for much of his career at the court, and involvement in many critical and historic decisions of the court. For example, Kennedy was in the majority in 5-4 opinions 346 times during his tenure, compared to being in the minority of a 5-4 decision only 126 times.
Some of his most important decisions include co-authoring the Planned Parenthood v. Casey decision in 1992 that affirmed Roe v. Wade and the right to have abortions. Kennedy was also the deciding vote in the Bush v. Gore 2000 case that ended the recount and effectively awarded the presidency officially to George W. Bush. Another important opinion by Kennedy was in Roper v. Simmons, which outlawed as unconstitutional the death penalty for crimes committed before the defendant turns 18.
While all of these were seminal and important moments where Kennedy spoke on behalf of a 5-4 split in the Court, his primary legacy will be in two areas: LGBT rights and First Amendment protections. This makes sense, as his libertarian views often put him right in the middle on these issues, and he was able to craft quite a legacy in both areas.
Relative to LGBT rights, his first major opinion in the mid-90's was in Romer v Evans, in which the Court struck down a Colorado constitutional amendment denying protected class status to LGBT individuals. In 2003, he authored the Court's opinion in Lawrence v. Texas, finding a Texas law prohibiting sodomy as unconstitutional. Then he made an even bolder move in the 2013 U.S. v. Windsor case where he held the Defense of Marriage Act, which defined marriage as only between a man and a woman, as unconstitutional. That led to his crowning achievement, the 2015 Obergefell v. Hodges decision that recognized a constitutional right to same-sex marriage. Under Kennedy's tenure, the Court went from stopping outright discriminatory laws against LGBT to recognizing fundamental rights of those same people.
Perhaps an even greater legacy will be left in First Amendment practice, where Kennedy was always expansive in his readings of the protections offered by this constitutional amendment. Almost every year Kennedy drafted 1 or more opinions based on his views of the First Amendment, including the recent Trump v. Hawaii case that we covered last week for the 2018 term. Last year he authored the Matal v. Tam trademark case that removed the Lanham Act's ban on disparaging trademarks as being improper viewpoint discrimination by the government under the First Amendment. Most notable in this field was the 2010 decision in Citizens United v. Federal Elections Commission, which freed corporations and unions from the limits previously applied to how much money these organizations can spend on political advertising.
And this First Amendment philosophy was exactly what made the recent Colorado baker case so interesting, as it put an LGBT couple's rights against a First Amendment argument being made by the baker who refused to bake the cake. Kennedy found a way to avoid the conflict between his two judicial beliefs by deciding that case on mostly procedural grounds, avoiding the First Amendment implications that would have perhaps undercut some of his work in expanding LGBT rights. It really makes for a fitting end for both parts of the primary legacy Kennedy leaves from his 30 years at the Supreme Court.
The Bottom Line is, Anthony Kennedy may go down as one of, if not the most influential and important justice of this era. His unique views compared to his fellow justices allowed moderation and compromise, as both sides always needed to seek Kennedy's support to win the day. It will likely be impossible to replace Kennedy with someone truly similar, particularly if Trump picks the replacement from his Federalist Society approved list of conservatives, so we will turn our attention to what the Court will begin to look like in our next segment. Until then, we salute Justice Anthony Kennedy for his long outstanding service to the country and his additions to the jurisprudence of this nation.
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