Taking a Road Less Traveled in the High Court

When Tony Kennedy was a child in Sacramento, a frequent guest at his family’s home was the popular Republican governor, Earl Warren.

Kennedy’s father, Bud, was a prominent lobbyist and an admirer of the governor. He “always used to tell me what a principled man Earl Warren was,” Kennedy recalled in an interview.

By the time young Kennedy was a college student at Stanford in the late 1950s, his family friend -- now Chief Justice Earl Warren -- had won legions of admirers across the nation as the liberal leader of the Supreme Court.

Nearly two decades after Warren stepped down, another popular California governor was in the White House. When President Reagan named Anthony M. Kennedy to the Supreme Court, he did so with hopes of reversing the liberal legacy of the Warren Court.

But these days, there are as many echoes of Earl Warren as of Ronald Reagan in the opinions of Justice Kennedy.

It was the principles framed by Warren that showed in Kennedy’s majority opinion last week as the court ruled 5 to 4 to abolish the death penalty for juveniles.

Warren, who led the Supreme Court from 1953 to 1969, saw the Constitution not as a set of 18th century legal rules, but as a guarantee of fairness and decency for all Americans.

When confronted with state-imposed racial segregation in the schools of South, Warren did not look to history to discern the view of the Constitution’s authors. Instead, he looked at the reality of 20th century America.

“We conclude that in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal,” Warren wrote in his first major opinion, the landmark Brown vs. Board of Education ruling.

When called upon to decide what is “cruel and unusual punishment,” Warren said the court must not be bound by the past, but instead should look to “the evolving standards of decency that mark the progress of a maturing society.”

Warren’s admirers saw his court as a voice for idealism and an inspiration for the civil rights movement. To its critics, the Warren Court represented judicial imperialism. Across the South, “Impeach Earl Warren” signs went up along the roadsides.

The critics were not limited to the South.

They included the governor of California -- who complained that unelected, activist judges were becoming a threat to democracy. Judges, said Reagan, were making the law in areas such as abortion, school prayer and the death penalty.

As president, Reagan promised to appoint conservatives who shunned the style of judicial activism represented by the Warren Court. And in 1987, when the Senate rejected his choice of Judge Robert Bork for the Supreme Court, Reagan turned to an old friend from his Sacramento days, Anthony Kennedy.

Thanks to a push from then-Gov. Reagan, Kennedy had been named as a U.S. appeals court judge in 1975, when he was 38. He went on to compile a record as a moderate conservative. In the wake of the Bork battle, Kennedy was just enough of an enigma to win an easy, unanimous confirmation from a relieved Senate.

Eighteen years later, when confronting the issue of whether teenage murderers can be put to death, Kennedy said the court must look “to the evolving standards of decency that mark the progress of a maturing society,” quoting Warren’s words. “We must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles” today, he added.

The Constitution has “come to earn the high respect and even the veneration of the American people,” Kennedy concluded, because of its living principles. “By protecting even those convicted of heinous crimes, the 8th Amendment [and its ban on ‘cruel and unusual punishments’] reaffirms the duty of the government to respect the dignity of all persons.”

It would be hard to imagine Chief Justice William H. Rehnquist or Justice Antonin Scalia writing such words -- or agreeing with them. They say the Constitution must be grounded in history and interpreted narrowly.

“What a mockery!” Scalia said in his dissent to Kennedy’s opinion in the juvenile death penalty case. Rather than look to “the original meaning of the 8th Amendment,” Kennedy was “looking into the mirror” to find the meaning of the Constitution, Scalia said.

This dispute is not new or likely to go away soon. Repeatedly, the Supreme Court has split between justices who look to the past and those who look to the present when deciding major controversies in constitutional law, including on abortion, religion, gay rights and the death penalty.

While Scalia and Rehnquist say the court must interpret the law as it was, Kennedy says the court must look to today’s world to decide issues involving liberty, equality and such amorphous terms as “cruel and unusual punishment.” As a result, Kennedy -- Reagan’s third and final appointee -- often finds himself speaking for the court in announcing its most significant liberal decisions.

In 1996, Kennedy wrote the court’s first opinion that struck down a law because it denied gays and lesbians the equal protection of the laws. “A state cannot deem a class of persons a stranger to its laws,” he wrote.

No one thought the original Constitution would have outlawed discrimination against homosexuals, but equal rights today must include gays and lesbians, Kennedy said.

Two years ago, he spoke for the court again in throwing out a Texas law that allowed police to arrest gays and lesbians for having sex at home.

In a broadly written opinion, Kennedy said gays “are entitled to respect for their private life. The state cannot demean their existence” by deeming them as a class of criminals, he said.

To some of his friends, it was a bit jarring to see Kennedy, a strait-laced family man and devout Catholic, emerge as a hero of the gay-rights movement. But Kennedy said his duty to the Constitution demanded just such a result.

As if to counter Scalia, he closed his opinion in the gay-rights case by saying the framers of the Constitution would have welcomed such a ruling.

“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,” Kennedy said. “As the Constitution endures, persons in every generation can invoke its principles in their search for greater freedom.”

Kennedy, 68, has three grown children and says he is well-settled into the job that has no retirement age. In conversation, he speaks with enthusiasm about architecture, literature and the theater.

In Sacramento, he had taught evening classes at the University of the Pacific’s McGeorge School of Law, and since joining the high court, he has taught McGeorge’s summer law classes in Salzburg, Austria. Not surprisingly, he has become a student of European and international law.

In last week’s death penalty opinion, Kennedy noted that the United States “stood alone in the world” in permitting the execution of juveniles, a comment that drew a harsh rebuke from Scalia. The views of “like-minded foreigners” should play no role in the court’s opinions, he said.

The split between Scalia and Kennedy goes back more than a decade. At first, they seemed to have much in common. They were born in 1936, grew up in Catholic families, went to high school in the ‘50s and then to Harvard Law School. Both were Republicans and were put on the courts by Reagan. When Kennedy moved to the Washington area in 1988, he and his wife, Mary, bought a house in the same McLean, Va., neighborhood as Scalia.

But their friendship fractured in the spring of 1992, when the court took on two highly controversial cases. When it looked as if Rehnquist had a majority to overturn bans on school prayers and the Roe vs. Wade ruling that legalized abortion, Kennedy broke ranks. He joined a five-justice majority -- all of whom were Republican appointees -- to preserve the abortion right and the ban on school-sponsored prayers. Ever since, Scalia’s most vehement dissents are usually pointed directly at Kennedy.

For example, after Kennedy spoke about the Constitution guaranteeing respect and dignity for gays -- although not a right to marry -- Scalia accused him of having “signed onto the so-called homosexual agenda.”

“Since the Constitution of the United States says nothing about this subject ... this court has no business imposing upon all Americans the resolution favored by the elite,” Scalia said in a dissent joined by Rehnquist and Justice Clarence Thomas.

The sharp words aside, Kennedy is no liberal, and he usually joins with the court’s conservative bloc in criminal cases, including supporting the death penalty. But two years ago, he joined with the liberals to end executions of mentally retarded defendants, prompting another sharp dissent from Scalia.

As with Warren, Kennedy’s broad reading of the Constitution has won him admirers and enemies.

Yale Law professor Akhil Amar said Kennedy’s opinions set out a grand vision that was similar in style to Warren’s. “There is a kind of sunny, optimistic vision and Western-style progressivism that reminds one of Warren,” he said. “You could call him a Big Tent Republican. In the gay rights opinion, there is a real sense of humanity and sensitivity for people who have been stigmatized.”

But Kennedy’s willingness to make social policy troubles many conservatives. Last week, the Wall Street Journal’s editorial page said Kennedy’s opinion in the juvenile death case “symbolizes the current Supreme Court’s burst of liberal social activism. From gay rights to racial preferences and now to the death penalty, a narrow majority of justices has been imposing its own blue state cultural mores on the rest of the nation.”

There is no doubt the recent death penalty rulings have their greatest effect in the red states of the South.

Among the 72 teenage killers who were taken off death row by the decision, all but a handful were in Texas, Alabama, Mississippi, Louisiana and North Carolina. Only three states -- Texas, Oklahoma and Virginia -- had carried out executions of juvenile murderers in the past decade.

Lawyers and former clerks refuse to be quoted speaking critically about Kennedy or other sitting justices, but many conservatives are dismayed by his record.

“Conservatives are angry and view him as a disappointment,” said one former clerk. “He is a generally sound, careful, thoughtful judge. But he is also a judicial imperialist. He has a deep faith in the judiciary’s ability to solve our society’s problems, and that runs counter to traditional conservative principles.”

Activists on the right and the left also see in Kennedy’s saga a lesson for the year ahead.

He is a member of the Supreme Court only because the Senate defeated Bork, Reagan’s first choice. As one activist said in response to last week’s 5-4 ruling, it showed the importance of having the “right judges” on the high court.