Anthony Kennedy

Anthony McLeod Kennedy (born 23 July 1936) is an American lawyer and judge who served as an Associate Justice of the Supreme Court of the United States. He was nominated by President Ronald Reagan on November 11, 1987, and took the oath of office on February 18, 1988. Kennedy became the most senior Associate Justice on the court following the death of Antonin Scalia in February 2016. Kennedy retired in July 2018.

• Some kinds of government regulation of private consensual homosexual behavior may face substantial constitutional challenge.
  • Beller v. Middendorf, 632 F.2d 788, 809-10 (9th Cir. 1980) upholding a Navy discharge for homosexual conduct.

• One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system. Many argue that a just society grants a right to engage in homosexual conduct. If that view is accepted, the Bowers decision in effect says the State of Georgia has the right to make a wrong decision — wrong in the sense that it violates some people's views of rights in a just society. We can extend that slightly to say that Georgia's right to be wrong in matters not specifically controlled by the Constitution is a necessary component of its own political processes. Its citizens have the political liberty to direct the governmental process to make decisions that might be wrong in the ideal sense, subject to correction in the ordinary political process.
  • Unenumerated Rights and the Dictates of Judicial Restraint. Address to the Canadian Institute for Advanced Legal Studies, Stanford University. Palo Alto, California. (24 July 1986 to 1 August 1986). (Also quoted at p. 443 of Kennedy's 1987 confirmation transcript).

• Indeed I do and I admire it. I am a practicing Catholic.
  • Alleged response to conservative senator's statement that "I think you know where I stand on abortion" (exchange occurred at White House prior to Justice Kennedy’s nomination). Quoted in Opinion Journal (1987 (date of quote) 16 October 2005 (date of article)). "Religion and the Court". Wall Street Journal.  Later, Kennedy cast doubt upon that exchange (see p. 91 of 1987 confirmation transcript).

• The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech.
  • International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (concurring opinion) (26 June 1992).

• Sometimes you don't know if you're Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line.
• Why did I resign you ask?
  • Quoted in George Will (1992 (date of quote) 6 March 2005 (date of article)). "Wrong on All Counts". Washington Post: p. B07. 
  • Reported by Terry Carter in California Lawyer magazine (August 1992)

• At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. … people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail…. We conclude the line should be drawn at viability, so that, before that time, the woman has a right to choose to terminate her pregnancy…. there is no line other than viability which is more workable. To be sure, as we have said, there may be some medical developments that affect the precise point of viability, but this is an imprecision within tolerable limits. … A husband has no enforceable right to require a wife to advise him before she exercises her personal choices.
  • Planned Parenthood v. Casey, 505 U.S. 833 (29 June 1992) (joint opinion coauthored with Justices Souter and O’Connor).

• We must never lose sight of the fact that the law has a moral foundation, and we must never fail to ask ourselves not only what the law is, but what the law should be.
  • Quoted in Richard C. Reuben (October 1992). "Man in the Middle". California Lawyer: p. 35. 

• Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, Kadrmas v. Dickinson Public Schools, 487 U. S. 450, 462 (1988), and Amendment 2 does not.
  • Majority opinion in Romer v. Evans (decided 20 May, 1996), 517 U.S. 620, 635, joined by Associate Justices Stevens, O'Connor, Souter, Ginsburg, Breyer

• The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation ... [is] obnoxious to the prohibitions of the Fourteenth Amendment .... " Civil Rights Cases, 109 U. S., at 24.
  We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed. It is so ordered.
  • Majority opinion in Romer v. Evans (decided 20 May, 1996), 517 U.S. 620, 635-636, joined by Associate Justices Stevens, O'Connor, Souter, Ginsburg, Breyer

• In the federal confirmation process, a standard question from the judiciary committee is, "Well, if you're confirmed will you legislate?" And, with a look of horror, the nominee says, "Oh, I won't legislate." Well, what about the law of contract and tort; where do they think it came from, the stork?
  • Roth Lecture, USC Law School (20 November 1998).

• Our system presumes that there are certain principles that are more important than the temper of the times. And you must have a judge who is detached, who is independent, who is fair, who is committed only to those principles, and not public pressures of other sort.
  • Interview: Justices Stephen Breyer and Anthony Kennedy (1999-11-23). Retrieved on 2006-11-26. (Interviewed by Bill Moyers for the Frontline documentary "Justice for Sale").

• The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn from limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off.
  • Stenberg v. Carhart, 530 U. S. 914 (28 June 2000) (detailing what he deemed a constitutionally protected alternative to partial-birth abortion).

• The Supreme Court of Florida has said that the legislature intended the State's electors to "participat[e] fully in the federal electoral process," as provided in 3 U. S. C. §5. That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is upon us, and there is no recount procedure in place under the State Supreme Court's order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed. Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy.
  • Bush v. Gore, 531 U.S. 98 (12 December 2000).

• First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.
  • Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (Opinion of the Court).

• The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse.
  • Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (Opinion of the Court).

• Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions
  • Lawrence v. Texas, 539 U.S. 558 (26 June 2003).

• The instant case involves liberty of the person both in its spatial and more transcendent dimensions.... Bowers was not correct when it was decided, and it is not correct today.... As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
  • Lawrence v. Texas, 539 U.S. 558 (26 June 2003).

• Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
  • Lawrence v. Texas, 539 U.S. 558 (26 June 2003).

• It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty.
  • Roper v. Simmons, 543 U.S. 551 (1 March 2005).

• When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.
  • Roper v. Simmons

• The Constitution doesn't belong to a bunch of judges and lawyers. It belongs to you.
  • Interview for Academy of Achievement (3 June 2005).

• I knew Earl Warren very well, on a somewhat professional basis. Professional, as in I was a nine-year-old page boy and he was the Governor. We knew his children and played in the Governor's Mansion and so forth. I have a letter I've given to the Supreme Court Historical Society, in which he wrote and said, "You're going to go very far in government." I'm very proud of the fact that I knew well someone who later became the Chief Justice of the United States.
  • Interview for Academy of Achievement (3 June 2005).

• [T]his Court now concludes that independent [political] expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.
  • Citizens United v. Federal Election Commission, 558 U.S. 50 (21 January 2010).

• Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. [...] The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. [...] By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.
  • Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (Opinion of the Court).

• When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.
  • Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (Opinion of the Court).

• The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.
  • United States v. Alvarez, 567 U.S. 709 (2012), Part IV.

• Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication.
  • United States v. Alvarez, 567 U.S. 709 (2012), Part IV.

• The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government.
  • Hollingsworth v. Perry, 570 U.S. 693 (2013), Dissent

• Dignitary wounds cannot always be healed with the stroke of a pen.
  • Obergefell v. Hodges, 576 U. S. ____, (2015), majority opinion.

• The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
  • Obergefell v. Hodges, 576 U. S. ____, (2015), majority opinion.

• No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
  • Obergefell v. Hodges, 576 U. S. ____, (2015), majority opinion.

• The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power. The mandate for segregated schools, Brown v. Board of Education, 347 U. S. 483 (1954); a wrongful invasion of the home, Silverman v. United States, 365 U. S. 505 (1961); or punishing a protester whose views offend others, Texas v. Johnson, 491 U. S. 397 (1989); and scores of other examples teach that individual liberty has constitutional protection, and that liberty’s full extent and meaning may remain yet to be discovered and affirmed. Yet freedom does not stop with individual rights. Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure. Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.
  • Schuette v. Coalition to Defend Affirmative Action, 572 U. S. ____, (2016), plurality opinion.

• The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.
  • Schuette v. Coalition to Defend Affirmative Action, 572 U. S. ____, (2016), plurality opinion.

• A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. See Ward v. Rock Against Racism, 491 U. S. 781, 796 (1989). Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.
  • Packingham v. North Carolina', 582 U.S. ___ (2017), majority opinion.

• Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. As this Court observed in Obergefell v. Hodges, 576 U. S. ___ (2015), “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Id., at ___ (slip op., at 27). Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law. See Newman v. Piggy Park Enterprises, Inc., 390 U. S. 400, 402, n. 5 (1968) (per curiam); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 572 (1995) (“Provisions like these are well within the State’s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments”).
  • Masterpiece Cakeshop v. Colorado Civil Rights Commission', 584 U.S. ___ (2017), majority opinion, part II, section A.

• The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.
  • Trump v. Hawaii', 585 U.S. ___ (2017), concurrence and last opinion at the Supreme Court before retirement.

• In June 2003, the U.S. Supreme Court's majority opinion in Lawrence overruled Bowers. Kennedy wrote the opinion for the majority, which was long on philosophy and short on precedent. Kennedy's opinion in Lawrence is a result in search of a rationale. He began with "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places." This statement means absolutely nothing from a constitutional perspective. Every criminal or immoral act can be justified on the grounds of exercising liberty. But Kennedy has a purpose in such an approach. By using the catchall word "liberty" rather than applying the Constitution to the issue, he seeks to expand the plain meaning of the due process clause of the Fourteenth Amendment (which prohibits states from depriving "any person of life, liberty, or property without due process of law") to grant rights not mentioned elsewhere in the Constitution.
  • Mark Levin, Men in Black: How the Supreme Court is Destroying America (2004), p. 79-80

• Kennedy and the majority explicitly overruled Bowers and wrote that Stevens's original reasoning, in dissent, that morality alone is not a legitimate basis to support a law was right. Scalia countered, "This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, [no law against fornication, bigamy, adultery, adult incest, bestiality, and obscenity] can survive rational-basis review. Kennedy, traveling further and further away from his judicial responsibility to interpret the Constitution, wrote of an "emerging awareness that liberty gives substantial protection" to sexual decisions and reviewed how sodomy laws had been repealed in most states and even in Europe, where the European Court of Human Rights found sodomy laws invalid under the European Convention on Human Rights. Kennedy concluded with a lecture about liberty: "The petitioners are entitled to respect their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them full right to engage in their conduct without intervention of the government... The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." (Emphasis added.)
  • Mark Levin, Men in Black: How the Supreme Court is Destroying America (2004), p. 80

• "Kennedy's Benchmarks" by Mark M. Trapp in American Spectator (14 July 2004)