Kennedy, Anthony M. (1936–) (Update)

• Author: Michael C. Dorf
• Pages: 1530-1532

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After spending his first few terms on the Supreme Court as a reliable if nonideological conservative Justice, Anthony M. Kennedy has emerged as a "swing vote" on the REHNQUIST COURT. His predecessor, Justice LEWIS F. POWELL, JR. , played a similar role on the BURGER COURT, but unlike Powell, Kennedy does not tend to stake out intermediate positions on controversial issues. Instead, Kennedy has strong views that happen to place him at the Court's center. In some areas he joins the conservative bloc, consisting of Chief Justice WILLIAM H. REHNQUIST, and Justices ANTONIN SCALIA, CLARENCE THOMAS, and (on many issues) SANDRA DAY O'CONNOR. In other areas, Kennedy joins the moderate-to-liberal bloc, consisting of Justices JOHN PAUL STEVENS, DAVID H. SOUTER, RUTH BADER GINSBURG, and STEPHEN

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G. BREYER. The one near-constant is that Kennedy's position commands at least four other votes.

Kennedy's views about the relation between the states and the federal government are illustrative. He has joined the conservative bloc in a string of decisions invalidating federal laws as infringing upon state SOVEREIGNTY. These cases alternatively invoke the TENTH AMENDMENT, Printz v. United States (1997); the ELEVENTH AMENDMENT, Seminole Tribe of Florida v. Florida (1996); or Congress's limited enumerated powers, UNITED STATES V. LÓPEZ (1995), City of Boerne v. Flores (1997); but they consistently display a skepticism toward federal power. Kennedy does not, however, romanticize the states in the way that the other conservatives appear to do. He was the only member of the Court who voted to invalidate both the federal Gun-Free School Zones Act and a state's efforts to impose TERM LIMITS on members of its congressional delegation, Thornton v. U.S. Term Limits (1995). As he wrote in a concurrence in the latter case: "That the States may not invade the sphere of federal sovereignty is as incontestable, in my view, as the corollary proposition that the Federal Government must be held within the boundaries of its own power when it intrudes upon matters reserved to the States." The driving force behind Kennedy's FEDERALISM jurisprudence is neither nationalism nor STATES ' RIGHTS, but an abiding belief in limited government at all levels.

Kennedy's libertarian streak also informs his individual rights jurisprudence. He generally takes an expansive view of FREEDOM OF SPEECH rights under the FIRST AMENDMENT, although he recognizes a...