Justice Anthony Kennedy on the Supreme Court today: ‘A little too personal and confrontational’

Former Justice Anthony Kennedy loves showing guests around his art-filled chambers, but beneath that gentlemanly charm lies the steel that once made him a force on the Supreme Court. He showed a visitor a statue of the Pony Express: “And when Ronald Reagan was governor, and he saw it and loved it, I said, ‘You’re not Queen Mary. I don’t need to give it to you!'”

Kennedy, now 89, no longer hears Supreme Court cases. He officially resigned seven years ago, during the first Trump administration. “I loved sitting on the bench,” he said.

Asked if he would want to be there today, he replied: “The only reason I left – I love the Court – but I left for something I love more, which is my wife, Mary.”

Kennedy now has time for his wife and family – and time to look back. In a new memoir, “Life, Law & Liberty” (out Tuesday from Simon & Schuster), Kennedy details how his childhood in the West shaped his remarkable legal career, from private practice and teaching law in Sacramento to serving on the nation’s highest court.

“I was born in the West and I embraced that Western spirit,” he writes. “Sacramento is the starting point for my thinking about equality, freedom and freedom.”

Asked if he ever imagined himself serving on the Supreme Court, Kennedy said, “No, or any court really. My father was a solo practitioner and I took over his solo practice. It actually took over my life. And I didn’t have time to watch the kids grow up.”

So when then-Governor Ronald Reagan asked Kennedy if he would be interested in a federal judgeship, he said yes. “President Ford had asked him what his recommendation would be, and it seemed like a good way to be able to spend more time with my family,” he said.

At just 38 years old, Kennedy became the youngest judge on the federal 9th ​​Circuit Court of Appeals, but he soon discovered that serving on the bench presented its own challenges. Just months after Kennedy was sworn in, Lynette “Squeaky” Fromme was charged with the attempted assassination of President Gerald Ford. Justice Kennedy presided over his bail hearing. “Because I was a circuit judge and I was in Sacramento that day or that week,” he said. On the question of whether Fromme should be allowed to be released on bail, Kennedy said: “It probably took me ten seconds to decide no. »

But days later, Kennedy claims his Sacramento home was broken into and vandalized. And even though he couldn’t prove it, he always suspected there was a connection. “It was terrifying,” he said. “Luckily our U.S. marshals are very good and nothing happened.”

More than a decade later, Reagan — now president — reached out again, this time with a vacancy on the U.S. Supreme Court. Reagan’s first choice, Robert Bork, was rejected by the Senate, and his second, Douglas Ginsburg, dropped out. Kennedy, the third choice, said yes and was unanimously confirmed by the Senate.

Professor Jamal Greene, who teaches constitutional law at Columbia University, said: “I think you could argue that Justice Kennedy, in his time, was the most influential justice, perhaps even in the history of the Court. »

Greene became acquainted with Kennedy in 2006 while he was an employee of another justice on the Court, John Paul Stevens. “He was definitely a little bit of an iconoclast in the sense that he sometimes sided with the conservatives, but very often also sided with the liberal bloc,” Greene said.

And as an “influential justice” on the Court, Greene says, Kennedy voted decisively on some of the most important political and cultural issues of his era: the 2000 presidential election, possession of firearms, right to abortionAnd same-sex marriage.

Greene said: “One way to measure that is that the year I was on the Court, there were 25 5-4 decisions, and Justice Kennedy was in the majority in every one of them. And there’s certainly no one else that comes close.”

Kennedy did not take his power lightly. A devout Catholic, he considered resigning from the Court in 1992 during the Planned Parenthood v. Casey, but ultimately joined liberal justices in defending a woman’s right to abortion.

He said: “It just seemed to me that it was a woman’s right and what people of my faith should do is convince her not to have an abortion, convince her…but she should have that right.” »

Kennedy also authored the 2015 decision recognizing same-sex marriage, Obergefell v. Hodges: “No union is deeper than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family.

Kennedy said, “Someone told me it passed the refrigerator test, (meaning) if there’s something interesting and well-written, you put it on your refrigerator.”

All of Kennedy’s opinions, Greene said, reflect a common theme: “If you saw a Supreme Court opinion and you saw the words ‘liberty’ and ‘liberty’ in the first paragraph, you could be pretty sure that Justice Kennedy was the person who wrote that,” he said.

But since Kennedy resigned, Greene said, his legacy has begun to fade. In 2022, the Supreme Court (including two of its former clerks, Neil Gorsuch and Brett Kavanaugh) overturned Roe v. Wadeending the federal right to abortion. In his opinion in Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito wrote that the decision behind Roe v. Wade was “grossly flawed” and that the opinion Kennedy wrote in Planned Parenthood v. Casey “perpetuates its errors.”

Kennedy responds: “I stand by what we wrote and what we decided. It’s a difficult question.”

He also pointed out that it is quite rare for the Court to overturn one of its own decisions.

This may not be the last opinion Kennedy overturns. A petition has already been filed asking the Court to review the case legalizing same-sex marriage, Obergefell v. Hodges.

Today, Kennedy spends a lot of time with his “nine” — his grandchildren — and while he is careful not to criticize the current justices, he admits that he worries that some members of the Court may reveal their differences too publicly: “I’m actually somewhat concerned about the Court,” he said. “Some opinions are a little too personal and divisive. I hope that will calm down a little.”

I asked, “You write a lot about the importance of civility and ethics. Do you think we have lost sight of this today? Is this another reason why you wrote this book?

“Yes, I’m worried,” he replied. “Democracy involves open, rational, thoughtful, decent discussion, in which you respect the dignity of the person you disagree with. And if that doesn’t happen, then democracy as we know it is in danger.”

READ AN EXTRACT: “Life, Law and Liberty” by Justice Anthony Kennedy

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Story produced by Mary Raffalli. Publisher: Remington Korper.