Justice Kennedy: the Supreme Court's man in the middle

Michael Doyle - McClatchy Newspapers

Justice Anthony Kennedy in 2006.
Justice Anthony Kennedy in 2006. Chuck Kennedy / MCT

WASHINGTON — Justice Anthony Kennedy vaulted from California to the Supreme Court 20 years ago, seemingly with his eyes wide open.

"In a court that often seems tightly divided, everybody is going to be looking at you," Kennedy advised the Senate Judiciary Committee at the time.

But since his unanimous February 1988 confirmation, Kennedy has learned that the spotlight can burn as well as illuminate. This year, opinions guaranteeing legal protections for Guantanamo Bay detainees and blocking the execution of those who rape children confirmed his role as the court's swing justice even as they repelled his fellow Republicans.

"What are the scariest words in constitutional law these days?" the conservative Weekly Standard magazine asked recently, before answering, " 'Justice Kennedy delivered the opinion of the court.' "

Some decisions during the recently concluded term were technical but vitally important. In Stoneridge Investment Partners v. Scientific-Atlanta, Kennedy cheered Wall Street with a 5-3 opinion limiting investors' ability to sue, one of the biggest business victories of the year.

Others blew past the corporate bottom line. In Kennedy v. Louisiana, Kennedy delivered a 5-4 decision striking down Louisiana's law permitting the execution of those who rape children younger than 12. Presidential campaign rivals Barack Obama and John McCain put aside their differences to blast Kennedy's opinion.

In Boumediene v. Bush, Kennedy's 5-4 opinion extended habeas corpus rights to foreign prisoners seeking to challenge their detention at Guantanamo.

"It will almost certainly cause more Americans to be killed," a vehemently dissenting Justice Antonin Scalia said.

This ideological animus has shadowed Kennedy for years, and it can get personal. Critics say: He's squishy and given to grandiloquent pronouncements. He spuriously cites foreign laws in his opinions, most famously in a 2005 decision banning the execution of juveniles. He's no Robert Bork, the acerbically brilliant jurist whose 1987 Capitol Hill crash-and-burn set the stage for Kennedy's rise.

All the while, the 71-year-old graduate of McClatchy High School in Sacramento, Stanford and Harvard Law School has come to define the Supreme Court's center. The court has decided about 1,000 cases since 1995, and Kennedy has been in the ruling majority a remarkable 91 percent of the time.

Put another way, Kennedy dissents in only about 9 percent of decided cases, data compiled by show. The more conservative Justice Clarence Thomas and more liberal Justice Ruth Bader Ginsburg have dissented about twice as often.

On the court's really tough calls, the 5-4 decisions where history gets made, Kennedy has been in the majority 75 percent of the time in the last five years. The 2005 departure of Justice Sandra Day O'Connor only solidified his stature.

"If you have a hard, ideological case, it's Justice Kennedy or bust," Supreme Court litigator Tom Goldstein said. "I don't see him moving" from the center.

This centrist role seems to fit Kennedy like the Sacramento Elks Lodge pin he once wore; he can seem rather stolid, the man of the middle. That's misleading, though, because Kennedy also has a Phi Beta Kappa pin from Stanford.

And it isn't what true believers on either side expected when President Reagan promoted him from the 9th U.S. Circuit Court of Appeals. Conservatives hoped for a Bork without the baggage. Liberals typecast him as a hard-line right-winger. Both would be confounded.

"His past opinions offer little hope to gays and lesbians challenging adverse treatment in the courts," Jeffrey Levi, the executive director of the National Gay & Lesbian Task Force, lamented during Kennedy's 1987 confirmation hearing.

However, underscoring the dangers of Supreme Court predictions, Kennedy wrote the 2003 opinion striking down a discriminatory Texas law banning homosexual sodomy. That opinion in Lawrence v. Texas set the stage for the current gay marriage debate. It's also Exhibit A — or, by this time, Exhibit Z — in the conservative backlash against him.

For now, Kennedy and his wife, Mary — a former teacher at Sacramento's Golden Empire Elementary School — have made their summer getaway to Austria. Kennedy is teaching a three-week class in Salzburg sponsored by the University of the Pacific's McGeorge School of Law.

"In Salzburg, he and Mrs. Kennedy enjoy a very low-profile break from the Washington scene, and this helps them both escape the Beltway," McGeorge Dean Elizabeth Rindskopf Parker said.

McGeorge pays Kennedy about $24,000 for his summer work. Rindskopf Parker characterized him as an "outstanding teacher ... (with) a remarkable sense of humor" whose "gentle question-and-answer" manner puts students at ease.

She sees Kennedy unburden himself in Sacramento as well. It's where he assumed his late father's law and lobbying practice in 1963, and began teaching as a McGeorge adjunct faculty member in 1965. It's where he and his wife raised three children — all Stanford alumni — and where he stayed after being appointed to the appellate court in 1975.

"For being 3,000 miles away from Sacramento, he still has pretty strong ongoing relationships; he still knows people (in town)," said Brian Matsui, a Washington lawyer who clerked for Kennedy in 2002-03.

Matsui, the son of Rep. Doris Matsui, D-Calif., and the late Rep. Bob Matsui, described Kennedy as "a kind and dignified boss" who had high expectations but maintained "strong personal contacts" with his clerks.

Kennedy, in sum, appears to be a man of several parts; still bi-coastal, if you will.

He's the local stalwart, who retains an honorary membership in Sacramento's Del Paso Country Club. And he's the D.C. magnificence with an honorary membership in the Washington Golf and Country Club, which bills itself as the "playground of presidents" and usually charges a $70,000 initiation fee.

Kennedy is a bit grand, with a rhetorical style that can seem tailored for effect. He orated to the Senate Judiciary Committee about "the great tension, the great debate, the great duality in constitutional law" and about "one of the most powerful, one of the most sweeping, one of the most far-reaching kinds of remedies." His written opinions likewise can strive to soar.

"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," Kennedy wrote in a 1992 opinion upholding the right to abortion.

Scalia, in response, dismissed Kennedy's "epic tone," and returned in another dissent 11 years later to mock what he called "its famed sweet-mystery-of-life passage."

Yet Kennedy is also modest, a baseball-loving family man whose investments essentially are limited to savings accounts in Bank of the West and Wells Fargo. Some of his colleagues are millionaires with vast stock holdings.

Kennedy and his colleagues will return to the fray in October, when words once more will be used as weapons.

"We get criticized from time to time in the newspapers, and one of my children will say, 'Hey, Dad, how are you doing?' because they've read this lousy article," Kennedy told lawyers in November 2005. "That's nothing. But if we can ... nurture the idea that there is such a thing as a profession of judging, as a commitment to judicial independence and if the people understand, then they will respect this thing we call the rule of law."