Supreme Court Justice Anthony Kennedy, the last Reagan appointee, was on the United States Supreme Court since 1988, until his recent retirement in 2018. During Kennedys time, he has been viewed as the swing vote placing him in the middle of the two wings of the Supreme Court. Prior to being on the Supreme Court, Kennedy was on the U.S. Court of Appeals for the Ninth Circuit, appointed by former president, Gerald R. Ford. Kennedy was only 38 years old when appointed to the U.S. Court of Appeals, which made him the youngest federal appellate judge in the country. During his time on the U.S. court of Appeals, he established himself to be a distinguished candidate to fill the vacant seat on the Supreme Court created by the retirement of Justice Lewis Powell in 1987.
During his time on the Supreme Court, it is safe to say that Kennedys voting pattern was generally conservative. He tended to join conservatives in cases about religious liberty, civil rights, voting rights, and campaign finances. Although, Kennedy frequently cast the deciding vote in cases advancing socially liberal causes that ?discovered new rights in the Constitution, such as gay rights, abortion, restricting capital punishment, and eliminating life sentences for teenage killers.
For many of the highest profile cases of his time on the Supreme Court, Kennedy has been the deciding vote. Kennedy once said the cases swing, I dont. He took a case-by-case approach, so he approached every issue individually, regardless of being conservative or liberal, ultimately coining him the swing vote. Some would say Kennedy was a very fair man, although he often clashed with himself. When looking at similar cases, his vote would not replicate a vote he made in a previous case.
Kennedy was the deciding factor on many cases during his time and in this paper, I will be analyzing many cases where he played a crucial role in the outcome of the case.
Obergefell v. Hodges is a very recent case that took place in 2015. This case is about how a group of same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and Tennessee. They sued these states because they wanted to challenge the constitutionality of the states bans on same-sex marriage and refusal to recognize legal same-sex marriages. The plaintiffs argued that the states statutes violated the Equal Protection Clause and Due Process Clause of the 14th Amendment. This was a huge case in terms of Kennedys decision. Kennedy wrote the majority decision in which the vote was 5-4. Kennedy was ultimately the deciding vote and in conclusion he said same-sex couples respect marriage and ask for equal dignity in the eye of the law. He claimed that right was granted by the Constitution. He says in the case, 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. He also acknowledged that there will always be a debate between people that think marriage should be only between a man and a woman and people who think otherwise. He says how that debate should continue, but the same-sex marriages must be allowed.
Kennedy refers to marriage as dignity and he depicts the married state as essential to our most profound hopes and aspirations. He also makes his case that an interest in dignity is central in due process clause of the 14th Amendment. This Amendment states that no state shall deprive any person of life, liberty, or property, without due process law. He argues how dignity is a part of that statement. He also explained the Bill of Rights and how this an evolving document. There is no rule saying deciding what goes on or off it, so this same-sex marriage dispute is protected by that. All in all, he explains how this is an urgent matter, not only for the people today, but also how it will protect the upcoming generations and their freedom to marry the same-sex.
The history and significance of Kennedys decision will go down in history, because his decision essentially legalized same-sex marriage. This furthered the case of him being the swing vote. Throughout his career he was mainly conservative, but in this case, he was sided by four liberal justices making the majority vote 5-4. Without Kennedy in this case and his individual approach to each issue, same-sex marriage may not be legal today.
Another Supreme Court case where Kennedy made a huge impact is in the Planned Parenthood of Southeastern Pennsylvania v. Casey. This case took place in 1992 and Kennedy played a huge role in the decision of this case. During this time, the Pennsylvania legislature amended its abortion control law in 1988 and 1989, and among the new provisions, the law required a 24-hour waiting period before the procedure can happen. Minors were required to get consent of at least one parent if seeking an abortion. A married woman had to indicate that she notified her husband that she wanted to get an abortion. These rules and provisions were challenged by several physicians and abortion clinics. This case is directly related to Roe v. Wade (1973) because in this case, they were given the right to abortion. The question in this case is whether a state can require women who want an abortion to obtain informed consent, wait 24 hours, if married, notify their husbands, and, if minors, obtain parental consent, without violating their right to abortion as guaranteed by Roe v. Wade?
Kennedy was a part of the majority opinion and the ruling was 5-4, in affirmation of Roe v. Wade. They declared that a womans decision to get an abortion implicates important liberty interests and privacy interests that the Constitutions Due Process Clause protects against state interference. These interests form a substantive right to privacy that is protected from state interference in marriage, procreation, contraception, family relationships, child rearing, and education. The court argued that these rights also protect the abortion decision.
They then reaffirmed that states could not ban abortions before the viability point, and in no case, may states ban abortions that help preserve the life or health of the mother. When looking at Pennsylvanias provisions on abortion, they only determined that the requirement to notify the husband is unconstitutional. The other provisions were deemed constitutional.
Kennedy co-authored this opinion with Justices Sandra Day OConnor and David Souter. As Kennedy is mainly conservative, choosing this majority side is another example of him being the controversial swing vote. Kennedy did choose in affirmation of Roe v. Wade in this case, but his record on abortion-related matters has varied. He consistently voted in favor of pro-life protestors and against laws aimed at protecting women seeking abortions from harassment. He also had some controversial decisions when siding with abortion opponents dealing with partial-birth abortions. Although, in this case specifically, his swing vote was the decisive vote. Many were outraged, but because of his case-by-case approach and his ideology, he chose what he believed was best.
Fisher v. University of Texas was another case where Kennedy played a crucial role. Kennedy delivered the opinion for the 7-1 majority. The Texas legislature had previously enacted a law that required the University of Texas to admit all high school seniors who ranked in the top ten percent of their high school classes. The University of Texas found differences in in the racial and ethnic makeup of the universitys undergraduate population and the states population. The university then decided to modify their race-neutral admissions policy which said that they will continue to allow students in the top ten percent of their high school classes in, but for the remainder of students who are outside of that range; the university would consider race as a factor in admission. Abigail Fisher, a Caucasian female, applied to the University of Texas and was not in the top ten percent of her high school class. She was denied by the university. She then filed suit against the university because she claimed that the use of race as a consideration in admission decision was a violation of the equal protection clause of the 14th Amendment.
Kennedy played a major role in this case. His decision was very unexpected which made it that much more impactful. His vote, along with the other justices, essentially denied a challenge to a race-conscious admissions program at the University of Texas. Kennedy had never voted previously to uphold an affirmative action plan. In fact, he has dissented in prior cases about affirmative action. He explained how universities are owed considerable deference when defining those characteristics, like the study body diversity. I believe that decision is odd on his part, due to him not ever voting for affirmative action, but I personally agree with this statement in that universities should have the right to decide who gets accepted. If the university wants to make it more diverse, then they should be allowed to reject people they want and accept different race and ethnic backgrounds. I believe that is a huge problem in todays society. LVC is a predominant white school and it lacks diversity. LVC has taken steps forward to try to get more culture and diversity, but not much has worked. In my opinion, it all depends on the environment which you grew up in and where you grew up. These factors are usually determinants in if you will value higher education. I believe Kennedy upheld the affirmative action because he believes that diversity is a problem in the education system. He once said, it remains an enduring challenge to our nations education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.
Bush v. Gore is one of the most important cases in U.S. history because it essentially decided the presidency. Some say that Kennedy was the swing vote that allowed this to happen, although this case was a per curiam decision. During the election, there were demanded recounts ordered by the Florida Supreme Court, that all counties in Florida must immediately begin manually recounting all under votes. At the time Governor George Bush, filed a request for review in the Supreme Court and sought an emergency petition for a stay of the Floridas Supreme Courts decision.
The per curiam decision held that the recounting ballot was unconstitutional, and they said that no constitutional recount could be done in the time remaining. Kennedy is controversial in this case because along with Justice Sandra Day OConnor, were the only two justices whose names did not appear separately on any of the other opinions, signaling that one or either wrote the unsigned majority opinion. I agree with the court in their decision to write the opinon per curiam. I agree with this because having your name linked to going against the potential president of the United States does not look good for you. Although, it is known and there is a very high chance that Kennedy wrote the majority opinion that basically sent George Bush into office. Kennedy was the decisive vote from the bench that made this happen.
Capital punishment is a subject that Kennedy did not shy away from. He has had some very important votes and rulings in capital punishment cases. I will be discussing his impact on Kennedy v. Louisiana and Roper v. Simmons. In both of these cases, Kennedy was thoughtful towards capital punishment.
Kennedy v. Louisiana found Patrick Kennedy guilty of raping his eight-year-old step daughter. Louisiana law states that the death penalty can be enforced to those found guilty in the raping of children under the age of twelve. Patrick Kennedy was given the death sentence and he appealed the decision. Louisiana believed that their sentence of the death penalty was justified due to similar laws in five other states and because of the vulnerability of a child. Patrick Kennedy argued that five states do not constitute a national consensus for the purposes of the Eighth Amendment, and he believed the law was singling out black child rapists as opposed to white child rapists.
Justice Kennedy wrote the majority opinion which was a 5-4 decision. This decision was in favor of overturning the death penalty laws in Louisiana and the five other states. In the majority opinion Kennedy said there was a distinction between intentional first-degree murder on the one hand and non-homicide crimes against individual persons even devastating crimes like the rape of a child, on the other. Kennedy believes that the courts jurisprudence on the death penalty remains sound. Kennedy reasons for voting against the death penalty had to do with how the five other states laws were, as in they had to have a prior rape conviction in order to be subject to the death penalty. Also, he said how the death penalty presented problems when dealing with children. The problem was with special risks of an unreliable testimony by children and that crime often happens within the family. This could lead to the problem of underreporting of these crimes because they know the punishment; they might want to protect a family member since the penalty is so severe.
Being in Kennedys position here would be very tough for many people. Everyone wants justice, but many problems arise when enacting a death penalty sentence. Personally, in this situation with the rape of a child, I believe the death penalty is appropriate. I think keeping someone through the prison system would ultimately cost more money as opposed to their death. Especially since laws were already in place, I believe they should have been followed through. Kennedys impact on this case decided the life of a man. If that is not impactful, then I do not know what is.
The other capital punishment case I am going to talk about is Roper v. Simmons. This case took place before the previous case discussed. This case is about a 17-year-old boy named Christopher Simmons, who was sentenced to death in 1993. Then, in 2002, the Missouri Supreme Court reconsidered Simmons execution after ruling that sentencing the mentally disabled to death was against the 8th and 14th Amendment. Missouri saw that national opinion has changed and they decided to say these laws that allows the sentence of the death penalty to a minor is unconstitutional. On appeal to the Supreme Court, the government argued that allowing a state to overturn the Supreme Court due to evolving standards is very dangerous.
In a 5-4 majority opinion written by Justice Kennedy, he was again the deciding factor on another controversial case. He sided with the liberal bloc on this and said that standards of decency have evolved so that executing minors is cruel and unusual punishment prohibited by the Eighth Amendment. The court also looked out the international opinion against the death penalty. The U.S. was the last country to put this law into place. Although Kennedy voting against capital punishment here, he once before voted for it against juvenile offenders, but he is a believer of the evolving standards.
Kennedys views and rulings on capital punishment will go far beyond his years. His swing vote in this case was another decisive vote that essentially made another law preventing the death penalty being places on minors. I am in full acceptance of this because I am with Kennedy in the fact that young people are still developing and should not be held accountable at that level. I do believe in justice, but executing a minor would be against what I would want and now because of the evolving standards; against what Kennedy wants.
The next case I will talk about is a gun rights case that took place in 2008, District of Columbia v. Heller. In this case, Kennedy was the swing vote yet again. This case was about how the District of Columbia made it illegal to carry an unregistered firearm and prohibited the registrations of handguns, so essentially there was no compromise to be able to carry a handgun. The only exception is if the chief of police authorized you a one-year license to carry. The law also said how if you did legally own one, it had to be unloaded and disassembled. Dick Anthony Heller was a District of Columbia special police officer who was authorized to carry a gun on duty. He applied for a one-year personal handgun that he could keep at home and was denied. He sued the District of Columbia. He argued that these laws violated his Second Amendment. He wanted one for self-defense at home and since the gun had to be disassembled, he argued that violated his rights.
Kennedys role in this case was crucial in the 5-4 majority opinion. He was the swing vote that essentially lifted the ban on guns in D.C. He believed, just like the four other justices that citizens should have the right to bear arms and that they should have the right to self-defense at home. The court made references to a militia but these justices agree that should not be confined to just people in the military because the term once referred to all able-bodied men who were capable of being called to such service.
Kennedy was the ultimate swing vote during his time when dealing with gun rights. Other than this case, Kennedy was also in support of the McDonald decision that recognized an individual to bear arms both in and outside the home. However, since that case in 2010, the Supreme Court has declined to take any Second Amendment cases in almost a decade. Many think, that Kennedy had lost his appetite for future gun rights cases. I believe this could have been since Kennedy knew he was nearing his retirement, he would not vote to hear these cases because of the controversy they cause. Gun rights is a huge and sensitive subject in the United States today. All the mass shootings and other shootings going on today, make this subject very sensitive to many Americans. I do not agree with them almost ignoring the subject and not hearing these cases, but I do understand why Kennedy does not want to hear these cases. Also, with Kennedy being the swing vote so much backlash would come back on him in whatever decision he would make. If he goes for stronger gun rights, it upsets people and if he is against it, it upsets people. There is really no good choice for Kennedy in gun rights cases.
The last case I will be writing about where Kennedy played a major role is Citizens United v. FEC. In this case, Citizens United sought an injunction against the FEC to prevent the application of the Bipartisan Campaign Reform to its film Hillary: The Movie. This movie basically explains how she would be a good president. Federal law sets strict limits on the ability of corporations and unions to spend and attempt to influence elections. This case put campaign finance restrictions against Citizens Uniteds claim that businesses have First Amendment free speech rights.
Kennedy wrote the majority decision which was 5-4. Kennedy sided with the company and put down limits on independent campaign spending by corporations and unions. Kennedy in writing for the majority said, “when government seeks to use its full power, including the criminal law, to command
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