Jack Goldsmith, a professor at Harvard Law School, clerked for Supreme Court Justice Anthony M. Kennedy from 1990 to 1991.
Justice Anthony M. Kennedy’s retirement from the Supreme Court after more than 30 years of service is the most consequential event in American jurisprudence at least since Bush v. Gore in 2000 and probably since Roe v. Wade in 1973. For three decades, he has been a guiding force on the court’s most consequential decisions, conservative and liberal. His departure leaves the future of U.S. constitutional law entirely up for grabs.
Kennedy made it to the highest court in the land after President Ronald Reagan’s failed selections first of Robert H. Bork and then Douglas H. Ginsburg. When the Reagan administration looked for a safer choice, it turned to the soft-spoken, bookish Californian who ran his father’s law practice and taught constitutional law before becoming a respected appellate judge on the U.S. Court of Appeals for the 9th Circuit. The Senate confirmed Kennedy 97 to 0 on Feb. 3, 1988.
Kennedy dominated the direction of the court in its most important decisions from the beginning, and especially in recent years. One proxy for an ideologically contested case is when the court splits 5 to 4. In his 31 terms on the court, Kennedy led or tied for the most 5-to-4 cases in the majority a remarkable 20 times, including every term but one since swing justice Sandra Day O’Connor retired in 2006. His vote was extraordinarily consequential.
There are many reasons Kennedy was the man in the middle. He struggled with all sides of a case and brooded more than most justices about the right answer. And though he possessed a latent libertarianism, he lacked rigid ideological commitments that would have placed him consistently on one side of the court.
Kennedy will be most remembered for his famous progressive opinions — establishing a constitutional right to same-sex marriage and other gay rights, refusing to overturn the abortion right declared in Roe, extending the constitutional right of habeas corpus to wartime detainees held at Guantanamo Bay despite congressional and presidential resistance, limiting prayer in school and striking down the death penalty for juvenile criminals.
Despite these notable opinions on the left, Kennedy usually voted with the right side of the court — for example, to invalidate Obamacare, revitalize the Second Amendment right to bear arms, disable public-sector unions and uphold business prerogatives. He also wrote influential conservative rulings. He penned the progressives’ bête noire, Citizens United, which interpreted the First Amendment to ban government restrictions on corporate and associational political expenditures. He was a defender of federalism who wrote opinions limiting Congress’s power to enforce the 14th Amendment against states and its power to abrogate state immunity from lawsuits. He also wrote many opinions that narrowed criminal defendants’ rights and an important opinion upholding restrictions on abortion.
While Kennedy lacked an overarching jurisprudential commitment, some combination of three principles informed most of his landmark rulings.
The first and most distinctive principle was “dignity” — the quality of proper worth and esteem. Kennedy’s articulation of a constitutional “dignity as free persons” was an ineffable meld of privacy, liberty and equality that guided his landmark decisions on gay rights and will long reverberate in U.S. constitutional law. For Kennedy, dignity was not limited to individuals. The Constitution also preserves for states “the dignity and essential attributes inhering” in sovereignty, as he wrote in a famous opinion on states’ rights.
The second and related principle was a capacious notion of liberty from government interference. This principle informed his progressive social opinions but also led him to be suspicious of burdensome regulations and to read the First Amendment broadly. It also inclined him to push freedom downward, so to speak, with a thumb on the scale for states over the federal government and for individuals over both.
The third principle was a robust conception of judicial power. Kennedy believed in his bones in the integrity of judging. He had great confidence that the court’s intervention in contentious issues was vital to the effectiveness of the constitutional scheme.
These principles led Kennedy to different places in different contexts. But no matter which way he ruled, he truly sought “in each case how best to know, interpret and defend the Constitution and laws that must always confirm to its mandates and promises,” as he put it so well in his retirement letter to President Trump. And he possessed a model judicial temperament: fair-minded, thoughtful, balanced and deliberative.
Kennedy’s jurisprudence will be debated for generations. But those who know him well understand that his activities off the court are just as important to him. He is a devoted mentor to his law clerks. And he is a gentleman who possesses an unfailing personal kindness toward everyone he meets. He and his beloved wife, Mary, add rare grace to official Washington.
Kennedy has long been, and will surely remain, an active ambassador for the court and the U.S. rule of law — at home for everyone from legal experts to schoolchildren and laypeople, and abroad before foreign jurists and dignitaries. He pushes himself incessantly to learn and think about U.S. and judicial history and traditions. And he is a mesmerizing speaker and devoted teacher. Two years ago, my students gaped in awe for 90 minutes as the now-81-year-old justice, without notes, brilliantly analyzed a recent opinion.
It is hard to exaggerate Kennedy’s impact on the court and the nation during the past three decades. And because of that impact, it is hard to exaggerate the stakes in the nomination and confirmation of his replacement.