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In the heady days since Anthony Kennedy
unearthed a constitutional right for Americans “to define and express
their identity,” the extravagance of the Supreme Court’s claim has taken
some by surprise. It shouldn’t have. In finding for same-sex marriage
the way he did, Justice Kennedy made official what he made inevitable a
quarter-century back.
That was in 1992. The occasion was a
Supreme Court decision on abortion into which Mr. Kennedy inserted a new
definition of liberty. Where Thomas Jefferson had grounded human liberty in self-evident truth, Mr. Kennedy holds that the mere self suffices.
“At
the heart of liberty,” he wrote, “is the right to define one’s own
concept of existence, of meaning, of the universe, and of the mystery of
human life.”
Opinion Journal Video
Main Street columnist William McGurn analyzes the Supreme Court’s Obergefell decision. Photo: Getty
Now he has followed through. In Obergefell v. Hodges, the
court substitutes for the laws passed by the people acting through their
state legislatures a new constitutional right to “dignity” based on the
court’s “better informed understanding.”
Back when poor Harry Blackmun in Roe v. Wade
established a right to privacy that likewise appears nowhere in the
Constitution, he wrote under the conceit that his decision would resolve
the issue once and for all. Instead, his 1973 ruling launched the
culture wars.
Obergefell is Roe on steroids. Roe
legalized a market for abortion for those who wanted them and those who
provided them. It was qualified by conscience protections plus riders
attached to federal legislation greatly limiting the use of taxpayer
dollars to underwrite the practice. So Roe didn’t demand much of those on the other side—or on the sidelines.
Obergefell
is another thing altogether. In one of the great flimflams of American
life, it is a prescription for endless litigation smuggled in under
libertarian clothing. This began with the opening question put to all
those who held the classic view of marriage: What can it possibly matter
to you, they were asked, if two men or two women who love each other
call their relationship marriage?
We learned that it matters a great deal.
It matters to Brendan Eich,
who was forced to resign last year as CEO of the company he co-founded
after it became public that he had donated $1,000 to Proposition 8, the
successful California ballot measure banning same-sex marriage.
It
matters to Chick-fil-A, which in 2012 saw the mayors of Chicago and
Boston declare the restaurant chain had no place in their cities because
its chief executive held the same view of marriage that Barack Obama held until very recently.
It
matters to Catholic Charities, which in several states has been forced
out of the adoption business either because the charity does not offer
same-sex spousal benefits or declines to place children for adoption
with same-sex couples.
It matters for cake bakers, photographers,
florists, jewelers and pizza-parlor owners who happily serve gay
customers but draw the line at assisting gay weddings.
Finally,
it matters to all religious schools and religious institutions. Give the
Obama administration its due: The president’s solicitor general
admitted during the Obergefell oral argument that a victory for same-sex marriage would put the tax-exempt status of such institutions on the chopping block.
The
reason for all this is that the right for men to marry men or women to
marry women is only half of the equation—and not even the most important
half at that.
The other half involves antidiscrimination
statutes and regulations, not to mention the discretion of federal,
state and even private bureaucracies regarding everything from funding
and accreditation to tax exemption.
In short, there is nothing
live-and-let-live about the way this movement has operated the past few
years, and to pretend otherwise requires a willful blindness. Now, with Obergefell, the full furies have been released.
As Justice Samuel Alito
suggested in his dissent, thousands of Americans who never dreamed that
the issue would affect them will soon get highly personal lessons in
how the legalization of same-sex marriage by judicial fiat threatens
their schools, their institutions and even their livelihoods. This is
not your father’s culture war.
A century ago, another Supreme
Court justice famously wrote that the Constitution “is made for people
of fundamentally differing views.” How far we have traveled since.
Those
seeking to crush all dissent from the new judicial orthodoxy on
marriage will not always win, not least because the right to the free
exercise of religion—in bald contrast to Mr. Kennedy’s right to dignity—is
in fact in the Constitution. Still, however individual cases may turn
out, by foreclosing the option for democratic debate and compromise the
Supreme Court has ensured a bitter national harvest.
Welcome to
Justice Kennedy’s world. Where upholding the Kennedy definition of
liberty—the right to define your own truth—turns out to mean denying
that same right to millions of Americans who define marriage and truth
in a way different from his.
Was the justice hinting at his vote on the King v. Burwell case when he spoke to a congressional panel?
A Supreme Court justice wouldn’t use a congressional hearing to signal his vote on Obamacare, would he?
Justice Anthony Kennedy sent a ripple through the universe of court
watchers Monday when he told lawmakers that the justices should
interpret statutes without worrying about congressional gridlock.
Kennedy didn’t specifically mention the Affordable Care Act, but his
comments prompted immediate speculation that he will read the law as
barring crucial tax subsidies to insurance purchasers in two-thirds of
the country–leaving it to the president and Congress to negotiate what
would seem an unlikely fix.
Eric Segall, an Obamacare backer who teaches at Georgia State University College of Law, quickly responded on Twitter:
"This does not bode well for the government," blogged Josh Blackman,
an Obamacare critic who teaches at South Texas College of Law.
Kennedy voted to invalidate the law three years ago when the court
considered a broad constitutional challenge. He dissented as Chief
Justice John Roberts joined the court's four Democratic appointees to
uphold the measure.
With the court now taking up another Obamacare challenge–this one
focused on the law's inartful wording–many court experts assumed Roberts
would again be the most likely fifth vote to save the law.
Then the court heard arguments March 4, and the thinking shifted.
Roberts said next to nothing, and Kennedy, the court's most frequent
swing vote, hinted he was open to backing the administration.
Kennedy told a lawyer challenging the tax subsidies that "there's a
serious constitutional problem if we adopt your argument." The justice
said that limiting subsidies to the handful of states that have set up
their own insurance exchanges, as the challengers seek, might amount to
unconstitutional coercion of the states that did not set up their own
markets, pressuring them to do so.
Kennedy intimated he might interpret a disputed four-word phrase in a
way that avoided that problem, and saved the Obamacare tax credits.
Jump ahead to the congressional hearing. A representative asked
Kennedy about his previously expressed concerns that the court handles
many politically charged issues. Kennedy answered by saying that a
"responsible, efficient, responsive" Congress and president can
alleviate some of the pressure on the court.
Kennedy went on: "We routinely decide cases involving federal
statutes, and we say, `Well, if this is wrong, the Congress will fix
it.' But then we hear that Congress can't pass a bill one way or
another, that there is gridlock.
"Some people say that should affect the way we interpret the
statutes. That seems to me a wrong proposition. We have to assume that
we have three fully functioning branches of the government."
So what does that mean for health care? As Blackman noted in his blog
post, the issue of gridlock came up during the argument. Justice
Antonin Scalia (a likely vote against the administration) said he
expected Congress would jump in if the court rules against subsidies and
sparks the disastrous consequences predicted by the administration.
Kennedy didn’t join in that questioning, so it's not clear whether he
sees a connection to his concerns about coercion. Nor is it at all
obvious Kennedy had health care on his mind when he spoke before the
congressional panel.
And, of course, even if Kennedy backs the Obamacare challengers, the administration still can hope for winning over Roberts.
Segal went so far as to tweet congratulations to Jonathan Adler, the
Case Western University law professor who was one of the first to make
the case that the Affordable Care Act doesn’t authorize nationwide
subsidies.
Adler wasn’t buying it, saying Kennedy was merely describing the court's established approach toward statutory interpretation.
Anthony Kennedy is an associate justice on the U.S. Supreme Court who was appointed by Ronald Reagan.
Synopsis
Born
on July 23, 1936 in Sacramento, California, Anthony Kennedy went on to
graduate from Harvard Law School and teach constitutional law. He joined
the U.S. Court of Appeals in the mid-'70s and in 1988, after being
appointed by Ronald Reagan, became a Supreme Court justice. He’s known
for his conservative views while also having sided with decisions that
focused on individual rights.
Early Life
Anthony
McLeod Kennedy was the second child born to Anthony J. Kennedy and
Gladys McLeod. His father started out as a dock worker in San Francisco
and worked his way through college and law school to build a substantial
practice as a lawyer and lobbyist in the California legislature. His
mother was active in civic affairs. As a young boy, Kennedy came in
contact with prominent politicians and developed an affinity for the
world of government and public service.
An honor student for much
of his high school years at McClatchy High School in Sacramento,
California, Kennedy graduated in 1954. Following in his mother’s
footsteps, he enrolled at Stanford University. There he became
enthralled with constitutional law and was said by one of his professors
to be a brilliant student.
Kennedy completed his graduation
requirements in three years and attended the London School of Economics
for a year before receiving his bachelor's degree in political science
from Stanford University in 1958. He then attended Harvard Law School,
graduating cum laude in 1961. He subsequently served a year in the
California Army National Guard.
In 1962, Kennedy passed the bar
exam and practiced law in San Francisco and Sacramento, California. When
his father died unexpectedly in 1963, Kennedy took over the law
practice. That same year, he married Mary Davis, who he had known for
several years. Together, they would have three children.
Just
after starting at the law office, Kennedy began acting on what would be
his lifelong interest in education. He accepted a position as professor
of constitutional law at the University of the Pacific's McGeorge School
of Law, where he taught from 1963 to 1988.
Lawyer and Judge
In
his years of private practice, Kennedy followed his father’s political
affiliation in the Republican Party. He worked as a lobbyist in
California and became friends with Ed Meese, another lobbyist with close
ties to Ronald Reagan. Kennedy assisted then-Governor Reagan in
drafting Proposition 1, a ballot initiative to cut state spending.
Though
the proposition failed, Reagan was very appreciative for the assistance
and recommended Kennedy to President Gerald R. Ford for an appointment
to the U.S. Court of Appeals for the Ninth Circuit. At 38, Kennedy was
the youngest federal appeals court judge in the country.
During
the Carter administration, the Ninth Circuit gained a majority of
liberal thinking judges and Kennedy became the head of the court’s
conservative minority. His calm demeanor and friendly personality kept
the deliberations civil on the often divided court. Setting aside
ideology, Kennedy took a case-by-case approach, keeping his opinions
narrow and avoiding sweeping conclusions and rhetoric. This tactic
earned him the respect of opposing judges and lawyers alike.
Kennedy's
distinguished tenure on the Ninth Circuit put him on the short list of
candidates to fill the seat of retiring Supreme Court Justice Lewis
Powell in 1987. Instead, President Ronald Reagan nominated Robert H.
Bork, whose outspoken demeanor and sharply conservative views on
constitutional law and social policy led to his rejection by the Senate.
The quieter Kennedy was eventually nominated and was unanimously
confirmed.
On the Bench
Early in his tenure, Kennedy
proved to be markedly conservative. In his first term, he voted with
Chief Justice William H. Rehnquist and Justice Antonin Scalia, two of
the court's most conservative members, more than 90 percent of the time.
With
Justice Sandra Day O'Connor, Kennedy contributed critical votes that
led to winning conservative majorities in cases limiting congressional
authority under the commerce clause of the Constitution of the United
States and striking down portions of gun-control legislation. In
subsequent years, however, his decisions were more independent.
Parting
ways with his conservative colleagues in 1992, Justice Kennedy
co-authored (with O'Connor and Justice David Souter) the court's
majority opinion in Planned Parenthood of Southeastern Pennsylvania v.
Casey, which held that legal restrictions on access to abortion must not
constitute an “undue burden” on a woman's exercise of her right to
abortion as established in Roe v. Wade (1973).
Kennedy has been,
if anything, a surprising and unpredictable justice on the Supreme
Court, displaying thoughtful independence that at times, fails to
reflect any particular ideology. His episodic departure from
conservative jurisprudence reflected a civil-libertarian perspective on
certain individual rights.
For example, although he was generally
deferential to the government on criminal law and related matters, he
voted, along with Scalia and the court's liberals, to declare
unconstitutional a Texas law that prohibited the desecration of the
American flag, on the grounds that the Constitution protects such acts
as symbolic speech.
He also wrote the court's decision in Romer,
Governor of Colorado v. Evans (1996), which voided an amendment to the
Colorado state constitution that prohibited state and local governments
from enacting laws that would protect the rights of gays, lesbians and
bisexuals and in Lawrence v. Texas (2003) he declared unconstitutional
Texas's law criminalizing sodomy between two consenting adults of the
same sex.
Obamacare & Same-Sex Marriage
On June 25,
2015, Kennedy voted in favor of upholding a key component of the 2010
Affordable Care Act, President Barack Obama’s health care law, also
known as Obamacare. The 6 to 3 ruling preserved the law, allowing the
federal government to provide nationwide tax subsidies to help Americans
buy health insurance. Justice Kennedy joined fellow Republican
appointee Chief Justice John Roberts and four Democratic appointees —
Sonya Sotomayor, Elena Kagan, Ruth Bader Ginsburg, and Stephen Breyer —
in the majority ruling.
On June 26, 2015, one day after the ruling
on health care, the Supreme Court announced a landmark 5 to 4 ruling
guaranteeing a right to same-sex marriage. Justice Kennedy wrote the majority decision
in which he stated: “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.”
Justice
Kennedy joined more liberal Justices Ruth Bader Ginsburg, Stephen G.
Breyer, Sonia Sotomayor and Elena Kagan in the landmark decision.
Dissenting justices included Chief Justice John Roberts, Justices
Clarence Thomas, Samuel Alito and Antonin Scalia, all of whom wrote
opinions expressing that it was not the Supreme Court’s place to decide
same-sex marriage and it was an overreach of the court’s power. Justice
Scalia called the ruling “a threat to American democracy” while Justice
Alito wrote: "Even enthusiastic supporters of same-sex marriage should
worry about the scope of the power that today's majority claims. Today's
decision shows that decades of attempts to restrain this Court's abuse
of its authority have failed."
Impact and Legacy
It was in
the case of Lawrence v. Texas that Supreme Court observers noted
Justice Kennedy became a leading proponent of using foreign and
international law as an aid to interpreting the U.S.
Constitution. He
referred to foreign laws enacted by the Parliament of the United Kingdom
and the European Court of Human Rights in supporting his decision.
The
considering of foreign law is seen as a prominent factor in Justice
Kennedy’s occasional difference of opinion with his more conservative
colleagues and has raised the ire of conservative members of Congress
and political pundits.
In addition to the momentous
responsibility of sitting on the nation’s highest court, Justice Kennedy
is also engaged in a remarkable series of educational projects. He has
lectured in many law schools and universities in the United States and
other parts of the world, most notably China, where he is a frequent
visitor.
He has helped develop an educational program for senior
judges in Iraq’s judiciary and in association with the American Bar
Association he devised an online program exploring American values and
civic traditions. "Dialogue on Freedom" has been used by over a million
high school students throughout the United States.
WASHINGTON, Nov. 11—
President Reagan, stung by the failure of two
nominations to the Supreme Court in the last three weeks, today
nominated Judge Anthony M. Kennedy and expressed the hope that he could
be confirmed quickly in a spirit of bipartisan cooperation.
Mr. Reagan emphasized that Judge Kennedy ''seems to
be popular with many senators of varying political persuasions.''
''The experience of the last several months has made
all of us a bit wiser,'' he said. [ Transcript, page B10. ] Mr.
Reagan's tone today was in marked contrast to the sharply partisan terms
in which he presented his previous nominee, Judge Douglas H unblocked school. Ginsburg,
two weeks ago. Then the President called the Senate's rejection of his
first nominee, Judge Robert H. Bork, a ''disservice to the Court and to
the nation'' and said that ''the American people will know what's up''
if the Senate did not act quickly. 'Delighted' to Be Picked
Judge Kennedy, in his brief appearance before White
House reporters today, was asked whether he was ''upset that you are, in
effect, the third choice for this seat?''
''I'm delighted with this nomination,'' he replied with a slight smile.
Senators from both parties said they would reserve
judgment and examine the new nominee's record closely. But beneath the
studiously noncommittal responses was a general expectation that Judge
Kennedy would be confirmed, as well as collective relief that another
bruising battle could probably be avoided.
Still the moment was a bitter one for a number of
conservatives, both on and off Capitol Hill. They viewed Mr. Reagan as
abandoning one of the principal goals of his Presidency, that of
changing the direction of the Supreme Court. Biden Pledges Cooperation
Key Democrats said that confirmation hearings would almost certainly not begin until January.
The chairman of the Senate Judiciary Committee,
Senator Joseph R. Biden Jr., said: ''I'm glad the President has made his
choice. We will get the process under way and move as rapidly as is
prudent. We want to conduct the committee's review with both
thoroughness and dispatch.''
Judge Kennedy, a 51-year-old Harvard Law School
graduate, was named in 1975 to the United States Court of Appeals for
the Ninth Circuit, which covers California and several other Western
states.
In writing nearly 500 opinions, he has earned a
reputation as a careful judge of basically conservative leanings who
approaches legal problems case by case and has apparently never evinced a
desire to change the modern course of constitutional law. Some scholars
who have studied his record say his approach is similar to that of
Justice Lewis F. Powell Jr., whose retirement last June created the
vacancy on the Supreme Court. Justice Powell was a nonideological
conservative who often cast the deciding vote on the sharply polarized
Court. Was on Earlier List
By contrast, President Reagan's first choice, Judge
Bork, whom the Senate rejected last month by a vote of 58 to 42, is an
acerbic critic of many recent trends in the law. The public learned
little of the views of the next choice, Judge Ginsburg, who withdrew on
Saturday, two days after disclosing that he used marijuana once as a
student in the 1960's and several times in the 1970's while a professor
at Harvard Law School.
Judge Kennedy, asked today whether he had ever smoked marijuana, said, ''No, firmly no.''
After Judge Bork's defeat, Mr. Reagan was on the
verge of choosing Judge Kennedy when Attorney General Edwin Meese 3d
prevailed on him to pick the 41-year-old Judge Ginsburg instead.
Judge Kennedy's name was on a list of 13 potential
nominees that Howard H. Baker Jr., the President's chief of staff,
presented to Senate leaders after Judge Bork's defeat. While the
Democrats objected to some names on the list, including that of Judge
Ginsburg, they raised no objection to Judge Kennedy. Some conservative
Republicans objected that Judge Kennedy was not conservative enough, but
the prospect of serious opposition from the right faded this week as
Judge Kennedy's nomination appeared all but inevitable.
''I doubt that any conservatives are going to oppose
him,'' Senator Orrin G. Hatch, a Utah Republican who Monday excoriated
the White House for not standing by Judge Ginsburg, said today.
In turning this time to a consensus nominee,
President Reagan was yielding to a political reality that includes
Democratic control of the Senate and his own weakened powers as he
enters his last year in office.
''There's been a basic compromise of principle
that's not satisfying to me,'' Senator Charles E. Grassley, an Iowa
Republican, said Tuesday as word circulated that Judge Kennedy's
nomination was virtually assured. ''But I suppose I'm resigned. There's a
practical aspect.''
Asked whether President Reagan had a choice other
than compromise, Senator Grassley, a member of the Judiciary Committee,
replied, ''If I were President of the United States, I think I'd figure
one out.''
Richard A. Viguerie, a conservative political
consultant unblocked games online, said in an interview that the mood among conservatives was
one of ''total anger and frustration.'' He called the Kennedy nomination
''a total surrender to the left.'' 'Battle Fatigue' a Factor
Other conservative leaders struck a more fatalistic
note. ''There isn't another Bob Bork out there, and we knew that all
along,'' said Daniel Casey, president of the American Conservative
Union. ''When the dust settles, people will regard this as a good
choice.''Furthermore, Mr. Casey said, ''There's institutional battle
fatigue involved here.''
From the liberal end of the political spectrum,
there was a striking difference between the reception Judge Kennedy
received today, muted though it was, and the warning notes that greeted
Judge Bork and Judge Ginsburg. Senator Edward M. Kennedy, who led a
harsh attack on Judge Bork and described Judge Ginsburg as ''Judge Bork
without the paper trail,'' said today only that he was interested in
studying the new nominee's lengthy judicial record. ''I look forward to
the hearings and to meeting Judge Kennedy,'' the Massachusetts Democrat
said.
Laurence H. Tribe, the Harvard Law School professor
and a liberal who has been a close adviser to Senator Biden, said in an
interview that his initial impressions of Judge Kennedy were very
favorable.
''His opinions are more sensitive than strident,''
Mr. Tribe said. ''He replaces the dogmatism of Robert Bork with a sense
of decency and moderation.''
But despite Judge Kennedy's voluminous record,
little has been gleaned so far about his views on key issues on which
the Supreme Court is closely divided. These include abortion,
affirmative action, and the relationship between church and state.
Senator Patrick J. Leahy of Vermont, a Democratic
member of the Judiciary Committee, said he expected the hearings to be
substantive.
Senator Arlen Specter of Pennsylvania, the only
Republican on the committee to vote against Judge Bork, said: ''At first
blush, Judge Kennedy looks good, but the Judiciary Committee will have
to check out his qualifications very carefully, as the Constitution
requires.''
The nominee himself said today, ''I'm looking
forward to this scrutiny that the Senate should give any nominee in the
discharge of its constitutional duty.''
It was not only the lack of knowledge about Judge
Kennedy's views that caused senators to withhold the sweeping
proclamations with which some of them had greeted the earlier nominees.
Republicans, particularly those who had offered early support to Judge
Ginsburg, were afraid of getting burned again, while the Democrats,
viewing the Supreme Court vacancy with some amusement a Republican
problem, see no need to take a position.
The Senate majority leader, Robert C. Byrd of West
Virginia, captured this mood today when he said, ''I hope this
nomination will provide no more surprises to the Congress or
embarrassment to the White House.''
SACRAMENTO
— In the fall of 1987, a package arrived on the desk of Laurence H.
Tribe, a Harvard law professor who had just lost a Supreme Court case on gay rights. It contained the legal opinions of Anthony M. Kennedy, a strait-laced, conservative Republican jurist from Sacramento who hardly seemed sympathetic to that cause.
The
package was sent by one of the most influential men in the California
capital then, Gordon Schaber, a law school dean who had enlisted a young
Mr. Kennedy to teach night classes and nurtured his career. Now Mr.
Schaber was angling for President Ronald Reagan to elevate his friend to
the Supreme Court — and he wanted the Harvard professor’s support.
“Gordon
Schaber said that Tony Kennedy was entirely comfortable with gay
friends,” said Professor Tribe, who later testified to urge the Senate
to confirm Justice Kennedy. “He said he never regarded them as inferior
in any way or as people who should be ostracized, and I did think that
was a good signal of where he was on these matters.”
Now, as the Supreme Court prepares to rule on whether to grant a constitutional right to same-sex marriage,
Justice Kennedy, a onetime altar boy, has emerged as an unlikely gay
rights icon. At 78, he has advanced legal equality for gays more than
any other American jurist, making his friend Mr. Schaber, who died in
1997 — and who was, many who knew him believe, a closeted gay man — look
prescient.
In
three landmark opinions, including the 2013 decision overturning a ban
on federal benefits for married same-sex couples, he has invoked human
dignity with “a sense of empathy and sensitivity that is unusual,” said
Prof. Arthur Leonard, an expert on gay rights law at New York Law
School. If, as many analysts expect, the court this month does extend same-sex marriage rights nationwide, Justice Kennedy will get much of the credit.
Those
who know him well cite a mix of factors in explaining his thinking: his
views on privacy and liberty, his belief in marriage as a stabilizing
force, his concern for the children of same-sex couples and his custom —
in the words of one good friend, Judge Alex Kozinski of the United
States Court of Appeals for the Ninth Circuit — of “stepping into the
skin” of those his decisions affect.
“I
think it’s been an evolution,” said Judge Kozinski, who served with
then-Judge Kennedy on the appeals court. “Maybe what happened is the
world around him changed, and the evolution has not been so much in his
own thinking, as in the world we live in.”
Justice
Kennedy now has a gay clerk, Joshua Matz, who wrote a 2012 law review
article with Mr. Tribe titled “The Constitutional Inevitability of
Same-Sex Marriage.” A former clerk, Paul T. Cappuccio, who was not
openly gay when he worked for the justice in the late 1980s, recently
married. When Mr. Cappuccio and his husband became fathers in 2013,
Justice Kennedy sent his customary baby gift for clerks: an inscribed
pocket Constitution.
And
at the McGeorge School of Law campus in Sacramento — where Justice
Kennedy taught part time for 23 years and formed a deep intellectual
bond with Mr. Schaber as they built the little-known school into a
respected institution — an openly gay colleague, Larry Levine, says the
justice has helped him get tickets to oral arguments in gay rights cases
before the Supreme Court. After each landmark ruling, Mr. Levine said,
he has written to Justice Kennedy to say, “both professionally and
personally, how meaningful this is.”
It
is difficult to know how much, or even whether, such personal
interactions influence Justice Kennedy’s jurisprudence. As Mr.
Cappuccio, now general counsel of Time Warner Inc., said: “He takes
liberty very seriously. Sure, I think it could be natural that one’s
life experiences can have an impact. But I think it would be belittling
of Justice Kennedy to say he might vote to recognize a constitutional
right to same-sex marriage just because he knows people who are gay.”
Still,
here in the California capital, where Justice Kennedy grew up and spent
most of his time before joining the Supreme Court in 1988, some see the
long arc of his past playing a role — both in his decades-long
friendship with Mr. Schaber and in the threads of moderation and
tolerance woven into his Sacramento roots.
In Warren’s Shadow
This
California city during Anthony Kennedy’s childhood in the 1940s and
’50s was not, those who lived here say, an especially partisan or
judgmental place. It was dominated by a looming figure: Earl Warren, the
Republican governor of California and future chief justice of the
United States.
“Sacramento
was extremely tolerant,” said Earl Warren Jr., 85, a son of the
governor and a retired lawyer. “We had lots of gay people who were very
prominent. If you knew or suspected that was the case, it didn’t make
any difference. I was a Boy Scout in Sacramento in the 1940s, and we had
gay leaders in the community who were also gay scout leaders. They were
good friends and good leaders, and there was never any problem.”
In
1941, when Anthony Kennedy was 5, his family settled in Land Park, a
neighborhood of curving streets, stately homes and lawns dotted with
rhododendrons — a place, said Joe Genshlea, a lifelong friend, “where
everybody knew everybody else, and life was just very stable.”
The
writer Joan Didion, a good friend of the future justice’s older sister,
was a frequent guest in the Kennedy home. The boxer Max Baer — whose
son Max Jr. went on to play Jethro on “The Beverly Hillbillies” — lived a
few blocks away. The Warren children, who attended the same public high
school as the future justice, were often around.
Justice
Kennedy’s parents were political and social fixtures in the capital.
His father, Anthony, known as Bud, was a Republican lobbyist who
represented tobacco interests — a whiskey-drinking, cigar-smoking,
“poker-playing, keep-your-cards-to-your vest attorney,” said Dr. David
Dozier, a retired neurologist and friend of the justice’s since
kindergarten. His mother, Gladys, called Sis, hosted backyard parties
for legislators and their wives.
Unlike
his backslapping father and lively mother, the future justice was
button-down and serious. (To this day, Dr. Dozier says, he has never
heard his friend swear.) When he was in the fourth grade, his father
arranged for him to work in the capital as a Senate page — a job that
allowed him to observe Governor Warren up close.
Today,
legal scholars see parallels in Justice Kennedy’s record on gay rights
and Chief Justice Warren’s record on civil rights, notably his landmark
1954 Brown v. Board of Education decision desegregating public schools.
Lou Cannon, the Reagan biographer and California journalist, says
Justice Kennedy told him long before he joined the court that he
“thought that Warren was a good chief justice and a good lawyer, as well
as being on the right side of history.” Justice Kennedy declined to be
interviewed for this article.
The
future justice was two years out of Harvard Law School and practicing
law in San Francisco when, in 1963, his father died. His mother asked
him to move home to take over Bud Kennedy’s law and lobbying business.
He settled in Land Park and married Mary Davis, a teacher and Sacramento
native, that year.
It
was not long before Mr. Schaber paid him a call. A round-faced,
bespectacled man who had a limp and wore one corrective shoe (a remnant
of childhood polio), Mr. Schaber, born into modest circumstances in
North Dakota, had moved to Sacramento as a child. When he became dean at
McGeorge, an unaccredited night school above a downtown radio store, in
1957 at age 29, he was the youngest law school dean in the country.
A
Democrat, Mr. Schaber — who went on to serve five years as presiding
judge of the Sacramento County Superior Court — advised politicians,
including governors, of both parties. “He was a must-visit consultant,”
said Clark Kelso, a former Kennedy clerk and McGeorge professor, “to
anybody who wanted to get elected to anything in Sacramento.”
He
was outgoing and erudite. “He loved to eat well, and entertain well,”
Mr. Kelso said, and dressed impeccably in tailored shirts. (For years
after he joined the court, Justice Kennedy listed a gift of $400 worth
of shirts from Mr. Schaber on his financial disclosure forms.)
If
politics was Mr. Schaber’s passion, said Glendalee Scully, a retired
McGeorge professor, “the law school was his baby,” and he saw in the
future justice “a shining star.” When Mr. Schaber reached out, the young
lawyer volunteered to teach contracts. Mr. Schaber replied that
contracts was taken. “You,” he said, “can teach constitutional law.”
Justice
Kennedy relished teaching, and Mr. Schaber became a mentor to him, Mr.
Kelso said. The two worked closely as the dean directed the school’s
merger with the University of the Pacific and its expansion to a 22-acre
campus in Sacramento’s Oak Park neighborhood.
When
Mr. Schaber developed a summer program on international law in
Salzburg, Austria, the future justice signed on; he still spends a week
teaching there each summer, which gives the school, now known as Pacific
McGeorge, bragging rights to claim him as its “longest-serving faculty
member.” In the school cafeteria, the Anthony M. Kennedy
Wall of Judicial Honor features photographs of alumni who became
judges. The wood-paneled law library displays a large painting of
Justice Kennedy that will one day hang in the Supreme Court.
The
two men traveled and often had dinner together, recalled Bernadine
Schaber Adams, who was married to Mr. Schaber’s brother, Gary, then the
business manager at McGeorge. “They were very close,” she said, adding
that the family gave Justice Kennedy a pair of Mr. Schaber’s cuff links
after he died. “Gordon knew all the good things about Judge Kennedy. So
he went to bat for him.”
In
1967, when Ronald Reagan became California governor, he wanted advice
on a tax-cutting ballot initiative; Mr. Schaber recommended Mr. Kennedy.
His work led Reagan to propose that President Gerald R. Ford appoint
him to the federal appeals court. It led, as well, to a close friendship
with Edwin Meese III, the Reagan adviser, who as attorney general under
Reagan was instrumental in Justice Kennedy’s appointment to the Supreme
Court.
If
Mr. Schaber was indeed gay — as nearly a dozen people here who knew
him, including law school colleagues and Mrs. Schaber Adams, say they
suspect — he took pains to conceal it. He had at least one female
companion, a judge who died in 1990. In gay circles, there were whispers
about his sexuality. But in polite Sacramento society, people did not
discuss it. Nor did he.
“He
had been trained to maintain his decorum, I guess you would call it,”
Mrs. Schaber Adams said. But of Justice Kennedy, she said, “I think he
knew.”
Shift After Early Rulings
In
his earliest rulings as a member of the appeals court, which he joined
in 1975, Judge Kennedy did not demonstrate himself to be the friend of
gay rights that Mr. Schaber later envisioned.
In
1976, he supported the firing of a federal employee for “homosexual
conduct.” In 1980, he affirmed the right of the Navy to dismiss gay
sailors. In 1982, he upheld the deportation of an Australian man who was
in a same-sex relationship with an American.
But
the 1980 case, Beller v. Middendorf, contained an important caveat. In
dense legal language, Judge Kennedy noted “substantial academic comment
which argues that the choice to engage in homosexual conduct is a
personal decision entitled, at least in some instances, to recognition
as a fundamental right and to full protection as an aspect of the
individual’s right to privacy.”
The
language surprised Judge Stephen Reinhardt, a Ninth Circuit liberal who
joined the court that year. “I always thought of Tony as someone who
never really got out of Sacramento, who was very provincial,” Judge
Reinhardt said. “He was a very traditional, straight person, very
moralistic.”
Sometime
in the 1980s, a gay couple moved a few doors down from the Kennedys in
Land Park; Mr. Genshlea recalls their arrival as “not a big deal.” Judge
Kennedy took Mr. Meese and his wife to a housewarming party at the male
couple’s home, according to a 1987 article in The Los Angeles Times,
which quoted a friend expressing the future justice’s attitude: “If they
can tolerate me, I can sure tolerate them.”
When
Justice Lewis Powell announced his retirement from the court in 1987,
many in Sacramento thought Judge Kennedy was the obvious pick. Instead,
Reagan nominated another federal appeals court judge, Robert H. Bork, an
ultraconservative who was rejected by the Senate. A second candidate,
Judge Douglas H. Ginsburg, withdrew amid controversy over past marijuana
use. Judge Kennedy, viewed as conservative yet more likely than Judge
Bork to win bipartisan support, was the third choice.
Mr.
Meese, in an interview, said legal equality for gays was not discussed
as an issue in the Kennedy evaluation. “That subject never came up,” Mr.
Meese said, “and there was nothing in his background one way or
another.”
When
the Bork nomination imploded, Mr. Schaber and Professor Tribe — who had
met then-Judge Kennedy while receiving an honorary doctorate from
McGeorge — began talking. The previous year, Mr. Tribe had tried to
persuade the Supreme Court to declare Georgia’s ban on sodomy
unconstitutional. He lost that case, Bowers v. Hardwick, 5 to 4.
But
even before Mr. Schaber sent the Kennedy opinions, Mr. Tribe had been
reading them and concluded that the jurist “wouldn’t hesitate to
overturn” Bowers. “I called Schaber, and I said, ‘I think this guy is
terrific,’” Mr. Tribe said. “And Schaber said, ‘Why don’t you testify
for him?’ And I said, ‘I will.’ And Schaber said, ‘That might make the
difference.’ ”
Not
everyone was so convinced; Professor Leonard, the gay rights expert at
New York Law School, viewed then-Judge Kennedy as a “likely vote against
us.” In the end, Mr. Tribe and Mr. Schaber were correct, though Mr.
Schaber did not live to see it.
As
the swing vote on a deeply divided court, Justice Kennedy typically
sides with conservatives on issues like affirmative action and campaign
finance, but with liberals on issues like the death penalty and gay
rights. In 2003, in the case of Lawrence v. Texas, he wrote the opinion
striking down Texas’s anti-sodomy law — and issued a rare apology from
the Supreme Court. “Bowers was not correct when it was decided,” he
wrote, “and it is not correct today.”
Today,
advocates of same-sex marriage predict Justice Kennedy will take the
next big step, by ruling it is protected under the Constitution. But Mr.
Cappuccio, the former clerk, warns that “it would be a mistake to take
Justice Kennedy’s vote in the same-sex marriage case for granted,
because he also has a lifetime of experience as a judge who takes
seriously the limited role of the federal courts.”
Here
in Sacramento, where the county courthouse is now named in Mr.
Schaber’s honor, those who knew him cannot help but wonder if the
justice is thinking about his old friend. Shortly after Mr. Schaber died
in November 1997, more than 750 dignitaries, judges and lawyers
gathered in a downtown Sacramento auditorium to honor him on what would
have been his 70th birthday. President Bill Clinton sent a letter;
Robert Matsui, the Democratic congressman, spoke.
But
all eyes were on Justice Kennedy, the American Bar Association
newsletter reported, as he delivered the eulogy, with Mr. Schaber’s
familiar round face displayed on a giant videoscreen.
He
recalled Mr. Schaber’s record of helping others: “the student who
needed financial aid,” or “the professional whose career was on the
brink of ruin and just needed a second chance.”
And
he talked of Mr. Schaber’s commitment “to a law that seeks compassion,
to a law that seeks justice.” As he spoke, Justice Kennedy “paused to
look up at Schaber’s face on the screen,” the newsletter said, “as if to
seek approval from his longtime friend.”