Justice Anthony Kennedy - Essay Example

Justice Anthony Kennedy Justice Anthony Kennedy is a moderately conservative justice who was born in July 23, 1936. His career in the legal profession started in 1961 when he was the associate counsel in California. He became the Associate Justice of the 9th Circuit Court of Appeals. He was appointed by President Ronald Reagan upon retirement of the Associate Justice Lewis Powell in June 1987 (Supreme Court of the United States para 3). Since his appointment he has ruled on various landmark cases. He is known to be a moderately conservative justice who has a strong commitment and determination to the Bill of Rights, particularly on issues relating to the implicit right to privacy as well as equal protection as provided for in the United States Constitution. Justice is considered as he Supreme Court’s swing vote especially on social issues such as privacy and equal protection. As a result of his swing vote, Justice Kennedy has held special prominence in several politically- charged 5-4 decisions. In other words, he is frequently the justice whose opinion tend to transform a dissent into a majority, or a vice versa. Being a moderate conservative, his cautious and pragmatic approach are reflected on how he votes (Ward para 9). This paper will discuss Justice Anthony Kennedy and in particularly his positions in past cases involving equal protection and right to privacy under the Constitution. Within the legal circles, Justice Kennedy is considered to be very independent and to hold very strong views regarding relatively small number of issues, but he is considerably open-minded (Nyden 15). It is also argued that he is quite different from his immediate predecessors, Lewis Powell and Justice Sandra O’Connor. He is different in the sense that his predecessors were not so much interested in making strong law statements while Kennedy has powerful views regarding the force of law. Even though he was appointed by a president who is a Republican, he is not easily ideologically pigeonholed. This is demonstrated by the fact that he has often tended focus at cases individually rather than deciding the cases on the rigid ideology basis. Due to this approach on deciding cases, the jurisprudence of Justice Kennedy is considered as libertarian, even though this view is disputed by some legal scholars. He has been instrumental in adding substance to the interest of liberty which is protected by the Fourteenth Amendment’s Due Process Clause (Duke Law para 3). This essentially implies that he supports liberty of individuals on numerous issues in principle. From his previous rulings, it can be gathered that he is tough on issues of crime and it can also be gathered that he opposes creation of constitutional restrictions about the police. In particular, he opposes creation of constitutional restrictions in Fourth Amendment cases that involve illegal drugs searches, even though there are certain exceptions to this. It is clear he balances interests of the state with that of the individuals (Nyden 14). Justice Anthony Kennedy has had firm and somewhat predictable positions in past cases involving privacy and equal protection. His positions have largely been informed by his conceptualization of liberty that to him includes some protections to individuals. His concept of liberty includes protections for controversial issues such as sexual orientation. In the 1996, he wrote a Supreme Court’s opinion in the case of Romer v Evans where he invalidated a Colorado Constitution’s provision that denies homosexuals the right of bringing claims on local discrimination (Ward para 8). His commitment for equal protection is also evidenced by the opinion he wrote in 2003 in the case of Lawrence v Texas. In this case, he invalidated criminal laws that are against homosexual sodomy based on the United States Constitution’s Due Process Clause thereby overturning the previous court ruling in Bowers v Hardwick in 1986. In both cases, Justice Kennedy sided with the members of the Court who were more liberal (Barnett 33). Justice Kennedy has often demonstrated his resolve for equal protection in his past cases (Colucci para 5). He joined the conservative wing in a case that related to strip searches of detainees which the court ruled that those of offenders who have been detained and admitted to the general jail population may be subjected t strip searches necessarily without a reason of suspecting contraband. He wrote in his opinion that every detainee who has been admitted to the general population can be required to go through a close visual inspection even while they are undressed. In addition, he has joined with the majorities in the Supreme Court in decisions that favor rights of the states and invalidating state and federal affirmative action programs. In the controversial case of Bush v Gore in 2000, he ruled with the majority on the grounds of Equal Protection; the case stopped the recount of the 2000 presidential election and effectively ended the legal challenge to President Bush’s election (Colucci para 7). From his positions in past cases, it is clear that he has favorite concerns on states’ rights and in promoting equal protection. In most cases, Justice Kennedy prefers a broad opinion as opposed to a narrow one. This is evidenced by the fact in the most hotly contested past cases, he has voted together with the conservatives in striking down laws such as in his ruling in the Citizens United case that argue that corporations are persons (Legal Information Institute). Moreover, Justice Kennedy has ruled in several landmark cases relating to privacy. In the case of Planned Parenthood v Casey (1992), he shocked many observers when he joined a 5-4 majority that upheld the Roe v Wade (1973) precedent of protecting the right to privacy (ACS National Convention para 6). The resignation of anti-Roe Justice Byron White in 1993 witnessed a replacement by pro-Roe Justice Ruth Ginsburg that expanded majority to 6-3. However, recent changes in the Supreme Court including the retirement of pro-Roe Justice O’Connor narrowed the majority to 5-4 majority once again. It is Justice Kennedy’s position in this case that raised the majority number. The case also provided a clear view of the position that he holds on issues of privacy. In Roe v Wade, the Court had used the privacy language in identifying several relationships that merited special protection against state interference. The position on privacy held by the Court in this case is considered by many pro-Roe as a significant victory for access of women to the reproductive health care (ACS National Convention para 8). By joining the majority to uphold Roe v Wade, Justice Kennedy demonstrated that his view regarding the support towards the return of public power. Legal liberals have found an ally in Justice Kennedy in helping to push their liberal legal thought particularly on issues of privacy. Justice Kennedy has been suspicious of public power and has been advocating the need to clearly articulate the important aspect of the individual such as dignity, autonomy, liberty, and personality (Barnett 21). As a result, he has been joining the liberals in crucial moments, even though he is a moderate conservative, to defend privacy, equal protection, the rights of the convicted and accused, racial preferences, sexual freedom, and free speech. It is worth noting that his religious and political upbringings have shaped his perception and his positions on various legal issues. He was born into a Republican family and lived through a time of huge Church upheaval. His religious and political backgrounds exposed him to ideology inconsistencies. Since he lived through transitions to religious basis of American capitalism, he developed traits and tendency to compromise; he exhibits these tendencies on the Supreme Court. Similarly, his Catholic and Republican root run deep, and is critical in explaining the dominant views of his jurisprudence: the equal protection and privacy of individuals (Colucci para 3). More so, it explains why he often seeks to protect individuals from the state menace. From his positions in past cases, it can be gathered that his two main guideposts in making legal decisions are social cohesion and human dignity (Schaeffer 1795). His decisions on issues of privacy and equal protection are aimed towards vindicating the multi-faceted human dignity value, which dictates that respect for equality, life, and liberty is paramount. It is also important to point out that Justice Kennedy has in some cases sough middle ground in his decisions on privacy and equal protection. For example on equal protection on the basis of race, Kennedy argues that the focus should be towards achieving social cohesion to allay racial tensions rather than exacerbate them (Colucci para 5). Contrary to many conservatives, he is inclined to upholding public programs that are race-conscious and which alleviate minorities’ marginalization. He argues that this can only be executed if such programs do not in any way generate extreme resentment in a section of a population. His middle path positions in some cases are evidenced on his decisions on equal protection cases. For example in the case of abortion, he argues that since women dignity which includes equality with men and freedom of choice should be respected, it will be logical not to allow abortion. However, he points out that government can regulate abortion so as to express respect for human dignity and dignity of life. According to him, it is only through regulation and not elimination of abortion that a society can fully realize the meaning of human dignity (Colucci para 4). It is no doubt that such positions portray Justice Kennedy compromising tendency and that of taking middle path on issues of equal protection. Conclusion Apparently, Justice Anthony Kennedy has had consistent positions on issues of privacy and equal protection. As has been noted, his positions on these issues are largely influenced by his political and religious backgrounds. While he is a moderate conservative, he is seen to compromise in crucial moments. As mentioned, he has demonstrated some liberal tendencies on some cases that relate to privacy and equal protection. A good example is in the case of Planned Parenthood v Casey (1992) where he shocked many observers when he joined a 5-4 majority that upheld the Roe v Wade (1973) precedent of protecting the right to privacy. His positions on equal protection and privacy are guided by two major principles: social cohesion and human dignity. Often, he makes decisions that are aimed at vindicating the multifaceted human dignity value which calls for respect of life, equality and liberty of individuals. Works Cited ACS National Convention. Planned Parenthood v Casey. 2013. Web. 24 Mar, 2013. < http://www.acslaw.org/acsblog/all/planned-parenthood-v.-casey> Barnett, Randy. Justice Kennedy’s Libertarian Revolution: Lawrence v Texas. 2003. Web. 24 Mar, 2013. < http://www.randybarnett.com/pdf/revolution.pdf> Colucci, Frank J. Justice Kennedys Jurisprudence: The Full and Necessary Meaning of Liberty. 2009. Web. 24 Mar, 2013. < http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/colucci0110.htm> Duke Law. Lawrence v. Texas: States may not prohibit private homosexual activity between consenting adults. 2003. Web. 24 Mar, 2013. < http://web.law.duke.edu/publiclaw/supremecourtonline/commentary/lawvtex> Legal Information Institute. CITIZENS UNITED v. FEDERAL ELECTION COMM’N ( No. 08-205 ). 2010. Web. 24 Mar, 2013. Nyden, Jeanette. Anthony M. Kennedy: A Study of His Judicial Opinions. 1990. Web. 24 Mar, 2013. < http://opensiuc.lib.siu.edu/cgi/viewcontent.cgi?article=1299&context=uhp_theses> Schaeffer, Jarrod. The Incorporation of Democracy: Justice Kennedy’s Philosophy of Political Participation in Citizens United. 2011. Web. 24 Mar, 2013. < http://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/SCHAEFFER.pdf> Supreme Court of the United States. (2013). Bibliographies of Current Justices of the Supreme Court. 2013. Web. 24 Mar, 2013. < http://www.supremecourt.gov/about/biographies.aspx> Ward, Artemus. Anthony M. Kennedy. 2013. Web. 24 Mar, 2013. < http://www.csuchico.edu/~award/Kennedy.htm> Read More