Anthony Kennedy seemed the safest, straightest-arrow Republican possible when President Ronald Reagan elevated him from an appeals court seat in Sacramento to the U.S. Supreme Court.
But with his majority decision Friday finding the Constitution protects same-sex marriage rights, the 78-year-old Kennedy has secured an unexpected place in the history books as the high court’s crucial gay rights champion.
“The rise of gay rights is one of the most important movements in recent history, and he is the justice who has been its voice,” Richard Primus, a University of Michigan Law School professor and a former Supreme Court clerk, said in an interview Friday.
Crafted with the same rhetorical sweep that regularly drives his critics to distraction, Kennedy’s 28-page majority decision Friday caps a remarkable run for the man who once, long ago, followed his father’s footsteps into a profitable but prosaic Sacramento lobbying business.
A 1954 graduate of Sacramento’s C.K. McClatchy High School who went to Stanford University and Harvard Law School, Kennedy still maintains ties to his hometown. A longtime adjunct professor at the University of the Pacific’s McGeorge School of Law in Sacramento, Kennedy now teaches a summer class for McGeorge’s program in Austria.
His wife, Mary, formerly taught at Sacramento’s Golden Empire Elementary School; their three children all attended Stanford.
Kennedy was also teaching at McGeorge, and serving on the 9th U.S. Circuit Court of Appeals, when Reagan’s judicial selection team plucked him for the Supreme Court. Kennedy was not the first or even the second choice for the job.
The Reagan team, including fellow Californian and Attorney General Edwin Meese III, tapped Kennedy only after the vocal conservative Robert Bork flamed out in the Senate. Reagan’s second choice, Douglas Ginsburg, withdrew his nomination following revelations of marijuana use, which was still politically toxic in the 1980s.
Kennedy, then 51 and with slightly more than a dozen years of unremarkable service as an appellate judge, was deemed a politically safe choice following Bork and Ginsburg. Nominated in November 1987, Kennedy was confirmed by the Senate in a 97-0 vote a little more than two months later.
“His opinions clearly show,” arch conservative Sen. Strom Thurmond, R-S.C., said at the time, “that he is an advocate of judicial restraint.”
Since joining the nine-member high court, Kennedy has often been cast as the swing vote; a justice who sometimes seems painfully aware of the complications that must be pondered in each case. Last term, he tied with one other justice for writing the most number of 5-4 decisions.
And while generally rightward-leaning in his judicial views and voting outcomes, Kennedy periodically strays across the fence. On Thursday, just one day before his same-sex marriage decision was released, Kennedy veered left in voting to uphold a key provision of the Affordable Care Act and writing an opinion allowing “disparate impact” fair-housing discrimination lawsuits.
Described by Primus of the University of Michigan as a “California moderate on social issues,” Kennedy has regularly angered hard-line conservatives with his voting. If he were a politician, he would likely be dubbed a RINO, or “Republican in Name Only.”
Former Texas Gov. Rick Perry, a current GOP presidential contender, summed up this sentiment Friday by declaring it “a shame” that Kennedy “decided to legislate from the bench.”
Observers across the ideological spectrum squirm at the grand sweep of Kennedy’s rhetoric. They think he strives too hard for profundity and eloquence, a point once made by Justice Antonin Scalia in a withering 2003 dissent, when he dismissed Kennedy’s “famed sweet-mystery-of-life passage” from an earlier case.
“People will read these opinions as long as the Republic stands,” Primus said. “He knows that.”
In his decision Friday, tellingly, Kennedy declares that “no union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family,” and that “in forming a marital union, two people become something greater than once they were.”
Certain recurring concepts, moreover, weigh heavily in Kennedy’s writing. “Dignity” is one of them. The term appears 10 times in Kennedy’s 2013 decision about the Defense of Marriage Act and nine times in the Obergefell v. Hodges decision issued Friday.
“The Supreme Court’s marriage decision doubled down on a new principle that Justice Kennedy has used multiple times in LGBT rights cases: equal dignity,” observed Nan Hunter, a professor at Georgetown University Law Center.
The decision Friday is Kennedy’s fourth major gay rights decision, While it is his most important, it also builds on what came before.
In 2013, Kennedy authored the court’s 5-4 decision striking down the Defense of Marriage Act’s prohibition on same-sex couples receiving a host of federal benefits. The decision laid the groundwork for every subsequent legal challenge to states’ marriage restrictions, as Scalia predicted it would.
“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia declared in his Defense of Marriage Act dissent.
Ten years earlier, Kennedy had written the decision striking down a Texas state law banning homosexual sodomy. In doing so, the justice and his more liberal allies took the relatively unusual step of explicitly overturning an earlier Supreme Court decision.
“The state cannot demean their existence or control their destiny by making their private sexual conduct a crime,” Kennedy said of the gay men involved in the Texas case.
Presciently, Scalia in his dissent to Kennedy’s Texas decision also predicted that it “dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”
As it happens, Kennedy’s decisions in the 2013 Defense of Marriage Act case and the 2003 Texas sodomy law case were also handed down on a June 26.
Kennedy’s Texas decision, in turn, followed his 1996 decision striking down a Colorado measure that prohibited “protected status based on homosexual, lesbian or bisexual orientation.” Kennedy rejected the measure, saying it “classifies homosexuals not to further a proper legislative end, but to make them unequal to everyone else.”
“A state,” Kennedy summed up 19 years ago, foreshadowing the history he made Friday, “cannot so deem a class of persons a stranger to its laws.”