Kennedy, Anthony M. (1936–)

Author:Michael J. Gerhardt

Page 1529

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...

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