Anthony McLeod Kennedy (23 July 1936 - ) has served as an Associate Justice on the United States Supreme Court since 1988. Kennedy is known as a moderate, nominated by Ronald Reagan to replace Lewis Powell. Reagan's first nominee, Robert Bork, led to contention (to say the least) and he was not confirmed. The second try, Douglas H. Ginsburg, withdrew his nomination amidst accusations of former marijuana use (apparently a life-long disqualification for the high court). Finally Reagan named Kennedy, and perhaps out of nomination fatigue, the Senate voted 97-0 to confirm. He took his seat on 18 February 1988.

Life and times

Anthony Kennedy was born in Sacramento, California, where he spent most of his life until he moved to Washington to take his seat on the Supreme Court. He followed his father's footsteps by studying the law, earning a bachelor's in political science from Stanford and then another at the London School of Economics, where he was struck by the student body's active political debate. He got his law degree at Harvard, and worked in San Francisco for two years, until his father's death in 1963, when he returned home to take over his father's practice. But not only did Kennedy take over the family business — until he was named to the Supreme Court, he continued living in the house he grew up in.

His law career was distinguished; he worked as a professor at the McGeorge School of Law, University of the Pacific between 1965 and 1988. Meanwhile, he continued his private practice until 1975, when he was appointed to the Ninth Circuit U.S. Court of Appeals by Gerald Ford. He was involved in politics before this — his ties to Ronald Reagan date from Reagan's years as California's governor: in 1973 Kennedy drafted a referendum for Reagan to lower the state's taxes, though it was ultimately unsuccessful. He also earned a license to practice law in Mexico, where he helped a client establish one of the first maquiladoras, factories owned by Americans. As a judge on the Ninth Circuit, he also was appointed by Chief Justice Warren Burger to supervise territorial courts in the South Pacific.

On the bench

Following Justice Lewis Powell's retirement in 1987, Kennedy, a devout Catholic but no relation to the famous Kennedy Clan, was confirmed to Powell's seat on the Supreme Court. Once there, he took a moderate position, often (along with Sandra Day O'Connor) casting the swing vote, favoring expansive interpretation of the doctrine of substantive due process, and supporting the right to abortion (joining the majority in Planned Parenthood v. Casey), while upholding restrictions on it and opposing expanding restrictions on the police under the Fourth Amendment.

Kennedy opposes affirmative action as ultimately harmful to minorities but has tended to strongly support gay rights, writing the impassioned opinion in the important 2003 case Lawrence v. Texas which struck down anti-sodomy laws as unconstitutional. His opinion referenced the laws of other countries as support, which is known as comparativism, of which he is a leading proponent. His 'betrayals' of the Religious Right in supporting the right to abortion and gay rights have earned him a special hatred from some religious conservatives — Focus on the Family's founder, James Dobson, onced called him "the most dangerous man in America."

His voting record tends not to fit well into current American politics: he has tended to support states' rights while upholding a Federal law outlawing medical marijuana even in states with laws permitting its use in Gonzales v. Raich. He joined the majority in 2000's decision in Bush v. Gore which essentially gave George W. Bush the presidency.

Kennedy and comparativism

With the increased frequency of international disputes, the Court has been called upon to interpret treaties, make judgments surrounding NAFTA, and even settle a case regarding the recovery of artwork stolen by Nazis, and the study and application of international law in such cases is necessary. Kennedy, however, has a particular interest in the area, and leads a cosmopolitan life: during summers, he teaches American and international law at the University of Salzberg. He has joined with the more liberal justices Ruth Bader Ginsburg and Stephen Breyer in looking to other countries for examples to elucidate ideas of basic individual liberty and human rights. Kennedy's opinion in Lawrence v. Texas in particular looked to British and European judgments overturning sodomy laws.

Looking to practices in other countries and international agreements is controversial. In the case Roper v. Simmons that determined that the execution of minors is unconstitutional, Kennedy cited the United Nations' Convention on the Rights of the Child. Others on and off the court have protested this; even though those jutices who have used comparativist approaches to deciding cases don't imagine that other nations' law carries legal weight in the United States, but Antonin Scalia's dissent in Roper condemned outright the examination of other countries' laws in making legal judgments. "The basic premise of the Court's argument — that American law should comport to the laws of the rest of the world — ought to be rejected out of hand," he wrote.

Comparativism is primarily a method associated with political liberals on the court, and so the moderate Justice Kennedy's use of the doctrine has led to greater awareness — and new condemnation — of it. In the spring of 2005, 54 members of the House wrote a resolution criticizing the use of foreign sources. With the retirement of Sandra Day O'Connor, Kennedy is likely to rise to greater prominence on the Court as its preeminent moderate, and comparativism promises to become a major subject of discussion among those watching.

Sources

Official Supreme Court bio
"Swing Shift: How Anthony Kennedy's passion for foreign law could change the Supreme Court." The New Yorker. 12 September 2005.