As he announced a major Supreme Court ruling recently, Anthony Kennedy spoke so fervently about free speech and the power of the Internet, he seemed ready to spring from his black leather chair on the justices’ elevated bench.
It was a fleeting but quintessential Kennedy moment as the court was finishing its annual session, a term defined to a large extent by Kennedy’s key vote, along with attention to whether he might retire.
The case demonstrated Kennedy’s crucial role, as he won a majority for a June 19 decision heralding the Internet’s “vast potential to alter how we think, express ourselves, and define who we want to be.” It also revealed perhaps why the 80-year-old, longest-serving sitting justice has not given up his black robe.
He lives for this.
Kennedy was in the majority on closely decided cases more than any other justice this term. In several opinions, he wrote passionately, invoking such favored terms as democracy and destiny.
If nothing causes him to reverse course and step down, he could play an influential role in the resolution of a challenge to President Donald Trump’s travel ban involving six predominantly Muslim countries. He could cast the deciding vote in two other high-profile disputes on the upcoming calendar: one testing whether the Wisconsin state legislature unconstitutionally gerrymandered voting districts to favor Republicans, the other whether the Christian owner of a Colorado bakery may refuse to make a wedding cake for a gay couple.
Kennedy has authored the Court’s major gay rights cases dating to 1996. Two years ago, he cast the decisive vote and wrote the opinion declaring a right to same-sex marriage.
First Amendment cases particularly inspire Kennedy. His majority opinion striking down a North Carolina law that prohibited registered sex offenders’ access to the Web was so expansive that three justices who agreed with his bottom-line judgment declined to sign his opinion.
Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Clarence Thomas, deemed Kennedy’s rhetoric “undisciplined” and “unnecessary.” They criticized him for being “unable to resist musings” that likened the Internet to streets and other public places and that could prevent states from restricting sexual predators from any Internet sites.
Overall, in the full run of cases, not just the handful that come down to 5-4 votes, the Sacramento native appointed by President Ronald Reagan in 1988 votes more on the right than left.
Yet, in the more contentious, ideologically charged social dilemmas, his vote can be unpredictable, and therefore up for grabs during negotiations with colleagues. He’s usually the linchpin when the left side of the bench — Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan — wins out.
That was demonstrated when he cast the key vote in a March case that would allow judges to delve into the usually secretive deliberations of a jury to safeguard against racial bias. Kennedy opened his opinion in Pena-Rodriguez v. Colorado with lofty language about the twelve men and women drawn from a community to decide a defendant’s guilt or innocence: “The jury is a central foundation of our justice system and our democracy … a tangible implementation of the principle that the law comes from the people.”
Keeping everyone guessing
At the columned Supreme Court building, Justice Kennedy works in a tidy, well-organized office with a view of the Capitol across the street. On his desk is a Black’s law dictionary and little else. The artwork recalls his California roots: a bronze horse sculpture by Thomas Holland and a California grapes painting by Edwin Deakin.
When it comes to decisions, whether on cases or his future plans, he is more complicated.
Kennedy has navigated a narrow ideological path at the center of the court. He has shifted to the left more in recent years, such as to support abortion rights and racial affirmative action on campus. He still keeps his colleagues and outside legal analysts guessing where he might come down in a dispute.
It was that way in recent months on the retirement watch.
Kennedy, who will turn 81 in July, had told friends and family he was weighing when to step down. Trump administration lawyers, eager for another chance to shape the court, following the April appointment of Justice Neil Gorsuch, were ready to seize another vacancy.
A Kennedy retirement would let Trump appoint a more rigid conservative justice and change the court’s makeup for a generation or more. The chances for liberal justices to prevail in close cases — as they did several times this session — would plunge.
Kennedy kept his thoughts private. Even as recently as last weekend, some of his former law clerks who attended a reunion with him said a slight chance seemed to exist that he would leave this June rather than next.
That speculation ended as the term closed this week with no retirement statement.
Kennedy’s flair for the dramatic suggests that when he does step down, perhaps next year, he would want to make an announcement while the justices are sitting and the court in session.
Kennedy did not respond to an interview request for this story.
Behind the scenes, Kennedy is a go-to justice not only regarding the substance of rulings. He is often at the center of efforts to work out compromises in thorny cases and lower tensions among colleagues.
And in another sign of his standing, justices say that after the nine have met privately and voted on cases, and Roberts has begun the delicate matter of who will author which decision, the chief confers first with one justice: Kennedy.