Justice Anthony Kennedy

Justice Anthony Kennedy joined the U.S. Supreme Court on February 18, 1988, replacing Justice Lewis Powell. Kennedy was born on July 23, 1936 in Sacramento, California to a Catholic family of Irish descent. He attended Stanford University, where he was a member of the prestigious Phi Beta Kappa society. Kennedy received his Stanford degree in political science in 1958. He received his law degree from Harvard Law School in 1961, graduating cum laude. Kennedy briefly served in the California National Guard after law school.

Kennedy spent much of his early career in private practice, although he also taught constitutional law at the McGeorge School of Law, part of the University of the Pacific. In 1975, President Gerald Ford nominated him to the U.S. Court of Appeals for the Ninth Circuit. He was confirmed a few weeks after his nomination. Kennedy would serve on the Ninth Circuit for the next 12 years.

On November 30, 1987, President Ronald Reagan nominated Kennedy to the U.S. Supreme Court. The Senate confirmed him on February 3, 1988 in a 97-0 vote, and he took the judicial oath about two weeks later. After his colleague Sandra Day O’Connor retired in 2006, Kennedy became the main "swing Justice" on the Court. This meant that he cast the deciding vote in many key cases as the Court’s ideological median.

Perhaps his greatest contribution came in the area of LGBTQ+ rights. Despite his Catholic faith, Kennedy penned a series of opinions that dramatically expanded protections for this population. These began with Romer v. Evans, which struck down a state constitutional provision withholding anti-discrimination protections from LGBTQ+ people. Kennedy then wrote in Lawrence v. Texas that states could not criminalize consensual sexual conduct between people of the same sex. In U.S. v. Windsor, he led the Court in striking down a law that withheld recognition of same-sex marriages for federal purposes. Finally, Kennedy wrote the majority opinion in Obergefell v. Hodges, which found a constitutional right to same-sex marriage.

Kennedy also narrowed the application of capital punishment under the Eighth Amendment and checked the powers of the federal government during the war on terror. On the other hand, he limited the constitutional right to abortion granted by Roe v. Wade, although he rejected opportunities to abandon Roe entirely. Meanwhile, his controversial opinion in Citizens United v. FEC relied on a broad vision of the First Amendment in finding that the government cannot limit corporate funding of independent political broadcasts in candidate elections.

Kennedy briefly was the Senior Associate Justice of the Supreme Court from 2016 until his retirement on July 31, 2018. This meant that he was the longest-serving Justice at that time. When Kennedy retired, he was replaced by Justice Brett Kavanaugh, who had served as his clerk in 1993-1994.

Selected Opinions by Justice Kennedy:

South Dakota v. Wayfair, Inc. (2018)

Topic: Taxes; Powers of Congress

State taxes will be sustained so long as they apply to an activity with a substantial nexus with the taxing state, are fairly apportioned, do not discriminate against interstate commerce, and are fairly related to the services that the state provides.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018)

Topic: LGBTQ+ Rights

The laws and the Constitution can and sometimes must protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and sometimes protected forms of expression.

Murr v. Wisconsin (2017)

Topic: Property Rights & Land Use

In determining the denominator of the takings inquiry, a court must consider the treatment of the land under state and local law, the physical characteristics of the land, and the prospective value of the regulated land. The endeavor should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that their holdings would be treated as one parcel or as separate tracts.

Ziglar v. Abbasi (2017)

Topic: Immigration & National Security

There is a balance to be struck between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the nation in times of great peril. The proper balance is for Congress to undertake.

Gobeille v. Liberty Mutual Ins. Co. (2016)

Topic: Labor & Employment

ERISA preempts a state law that governs or interferes with the uniformity of plan administration.

Obergefell v. Hodges (2015)

Topic: Due Process; Equal Protection; LGBTQ+ Rights

The Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed outside the state.

Zivotofsky v. Kerry (2015)

Topic: Separation of Powers

The President has the exclusive power to grant formal recognition to a foreign sovereign. Congress may not force the President to contradict their prior recognition determination in an official document issued by the Secretary of State.

Commil USA, LLC v. Cisco Systems, Inc. (2015)

Topic: Patents

A defendant's belief regarding patent validity is not a defense to an induced infringement claim.

North Carolina State Board of Dental Examiners v. FTC (2015)

Topic: Antitrust; Health Care

A non-sovereign actor controlled by active market participants enjoys state action antitrust immunity only if the challenged restraint is clearly articulated and affirmatively expressed as state policy, and the policy is actively supervised by the state.

Town of Greece v. Galloway (2014)

Topic: Religion

Legislative prayer, while religious in nature, is compatible with the Establishment Clause.

Schuette v. Coalition to Defend Affirmative Action (2014)

Topic: Equal Protection

There is no authority in the U.S. Constitution or Supreme Court precedents for the judiciary to set aside state laws that commit to the voters the determination of whether racial preferences may be considered in government decisions.

U.S. v. Windsor (2013)

Topic: Taxes; LGBTQ+ Rights

The Defense of Marriage Act was unconstitutional in defining “marriage” and “spouse” to exclude lawfully married same-sex couples for the purposes of federal law. Thus, the federal estate tax exemption for surviving spouses must be available to lawfully married same-sex spouses.

Fisher v. University of Texas (2013)

Topic: Equal Protection

Strict scrutiny must be applied to any university admissions program using racial categories or classifications. Once the university has established that its goal of diversity is consistent with strict scrutiny, the university must prove that the means that it chose to attain that diversity are narrowly tailored to its goal.

Univ. of Texas Southwestern Medical Center v. Nassar (2013)

Topic: Labor & Employment

Title VII retaliation claims must be proved according to traditional principles of but-for causation.

Maryland v. King (2013)

Topic: Search & Seizure

When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

U.S. v. Alvarez (2012)

Topic: Free Speech

There is no general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression that the First Amendment seeks to guarantee.

Arizona v. U.S. (2012)

Topic: Immigration & National Security

Certain provisions of an Arizona law affecting undocumented immigrants were preempted by federal law.

Sorrel v. IMS Health, Inc. (2011)

Topic: Free Speech

Speech in aid of pharmaceutical marketing is a form of expression protected by the Free Speech Clause.

Borough of Duryea v. Guarnieri (2011)

Topic: Labor & Employment

A government employer's allegedly retaliatory actions against an employee do not give rise to liability under the Petition Clause of the First Amendment unless the employee's petition relates to a matter of public concern.

J. McIntyre Machinery, Ltd. v. Nicastro (2011)

Topic: Lawsuits & Legal Procedures

Generally, the exercise of judicial power is not lawful unless the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. A foreign manufacturer was not subject to personal jurisdiction when it did not target the state in any relevant sense.

Bond v. U.S. (2011)

Topic: Role of Courts

An individual had standing to challenge a federal law on the ground that it interfered with the powers reserved to states.

Bilski v. Kappos (2010)

Topic: Patents

Although the machine-or-transformation test may be a useful and important clue or investigative tool, it is not the sole test for deciding whether an invention is a patent-eligible process under Section 101.

Graham v. Florida (2010)

Topic: Death Penalty & Criminal Sentencing

The Eighth Amendment does not permit a juvenile offender to be sentenced to life in prison without parole for a non-homicide crime.

Berghuis v. Thompkins (2010)

Topic: Miranda Rights

A suspect's silence during interrogation did not invoke their right to remain silent. The Miranda right to counsel must be invoked unambiguously. If a suspect makes an ambiguous or equivocal statement, or no statement, the police are not required to end the interrogation or ask questions to clarify the suspect's intent.

Ontario v. Quon (2010)

Topic: Labor & Employment

A government employer had a right to read text messages sent and received on a pager that the employer owned and issued to an employee.

Citizens United v. FEC (2010)

Topic: Voting & Elections; Free Speech

The government may not suppress political speech on the basis of the speaker's corporate identity. No sufficient governmental interest justifies limits on the political speech of non-profit or for-profit corporations.

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (2009)

Topic: Climate Change & Environment

The Army Corps of Engineers, rather than the EPA, held the authority to grant permits for the discharge of processed wastewater into an Alaska lake.

Ricci v. DeStefano (2009)

Topic: Labor & Employment

Before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe that it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action.

Ashcroft v. Iqbal (2009)

Topic: Lawsuits & Legal Procedures

The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.

Kennedy v. Louisiana (2008)

Topic: Death Penalty & Criminal Sentencing

The Eighth Amendment is defined by the evolving standards of decency that mark the progress of a maturing society. This principle requires that resort to capital punishment be restrained, limited in its instances of application, and reserved for the worst of crimes, those that, in the case of crimes against individuals, take the victim's life.

Boumediene v. Bush (2008)

Topic: Immigration & National Security

In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches. However, security also subsists in fidelity to freedom's first principles, such as freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.

Leegin Creative Leather Products, Inc. v. PSKS, Inc. (2007)

Topic: Antitrust

Vertical price restraints should be judged by the rule of reason.

Gonzales v. Carhart (2007)

Topic: Abortion & Reproductive Rights

When it has a rational basis to act, and it does not impose an undue burden, the state may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn. (This decision upheld a federal ban on partial birth abortion, which was seen as more specific and precise than the state law struck down in Stenberg.)

KSR Int'l Co. v. Teleflex, Inc. (2007)

Topic: Patents

In determining whether a combination patent is appropriate, or whether it fails for obviousness, a court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions.

Garcetti v. Ceballos (2006)

Topic: Labor & Employment; Free Speech

When public employees make statements pursuant to their official duties, the Constitution does not insulate their communications from employer discipline.

Gonzales v. Oregon (2006)

Topic: Health Care; Government Agencies

Chevron deference is not accorded merely because a statute is ambiguous, and an administrative official is involved. A rule must be promulgated pursuant to authority that Congress has delegated to the official. Also, even if a drug falls within the Controlled Substances Act, a doctor can prescribe it for a patient if it is allowed in the context of assisted suicide for terminally ill individuals under state law.

Exxon Mobil Corp. v. Allapattah Services, Inc. (2005)

Topic: Lawsuits & Legal Procedures

When the other elements of jurisdiction are present, and at least one named plaintiff in the action satisfies the amount-in-controversy requirement for diversity jurisdiction, Section 1367 authorizes supplemental jurisdiction over claims of other plaintiffs in the same case or controversy, even if their claims are for less than the requisite amount.

Roper v. Simmons (2005)

Topic: Death Penalty & Criminal Sentencing

The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.

Hiibel v. Sixth Judicial District Court of Nevada (2004)

Topic: Search & Seizure

Terry principles permit a state to require a suspect to disclose their name in the course of a Terry stop.

Ashcroft v. ACLU II (2004)

Topic: Free Speech

When plaintiffs challenge a content-based speech restriction, the government has the burden to prove that the proposed alternatives will not be as effective as the challenged statute.

Lawrence v. Texas (2003)

Topic: Due Process; LGBTQ+ Rights

The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.

U.S. v. Drayton (2002)

Topic: Search & Seizure

The Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches.

Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. (2002)

Topic: Patents

The patentee can overcome the presumption that prosecution history estoppel bars a finding of equivalence when the equivalent was unforeseeable at the time of the application, the rationale underlying the amendment bears no more than a tangential relation to the equivalent in question, or there is another reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question.

Palazzolo v. Rhode Island (2001)

Topic: Property Rights & Land Use

A Penn Central claim is not barred by the mere fact that the property owner acquired title after the effective date of the state-imposed restriction.

TrafFix Devices, Inc. v. Marketing Displays, Inc. (2001)

Topic: Trademarks

A product feature is functional and thus not protectable as trade dress if it is essential to the use or purpose of the article or affects the cost or quality of the article. Also, a functional feature is one the exclusive use of which would put competitors at a significant non-reputation-related disadvantage.

Circuit City Stores, Inc. v. Adams (2001)

Topic: Labor & Employment

The exemption in Section 1 of the Federal Arbitration Act, which excludes contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce, is confined to transportation workers.

Legal Services Corp. v. Velazquez (2001)

Topic: Free Speech

Viewpoint-based funding decisions may be sustained when the government is the speaker, or when the government uses private speakers to transmit information pertaining to its own program. It does not follow that viewpoint-based restrictions are proper when the government does not speak or subsidize transmittal of a message that it favors but instead expends funds to encourage a diversity of views from private speakers.

Burlington Industries, Inc. v. Ellerth (1998)

Topic: Labor & Employment

Under Title VII, an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, may recover damages from the employer without showing that the employer was negligent or otherwise at fault for the supervisor's actions, but the employer may interpose an affirmative defense. (The defense consists of the elements in Faragher below.)

City of Boerne v. Flores (1997)

Topic: Religion

Although Congress can enact legislation enforcing the constitutional right to the free exercise of religion, its power to enforce under Section 5 of the Fourteenth Amendment is only preventive or remedial.

Romer v. Evans (1996)

Topic: Equal Protection; LGBTQ+ Rights

The Equal Protection Clause does not permit a status-based classification of persons undertaken for its own sake. Thus, a state constitutional amendment violated the Equal Protection Clause when it precluded all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships.

Miller v. Johnson (1995)

Topic: Voting & Elections

In some exceptional cases, a reapportionment plan may be so highly irregular that, on its face, it rationally cannot be understood as anything other than an effort to segregate voters based on race. (However, when the district is not so bizarre, parties may rely on other evidence to establish race-based districting.)

Rosenberger v. Rector and Visitors of the University of Virginia (1995)

Topic: Religion; Free Speech

In determining whether the government is acting to preserve the limits of the forum that it has created so that the exclusion of a class of speech is legitimate, there is a distinction between content discrimination and viewpoint discrimination. Content discrimination may be permissible if it preserves the purposes of the limited forum. Viewpoint discrimination is presumed impermissible when directed against speech that is otherwise within the forum's limitations. Also, the guarantee of neutrality toward religion is respected when the government, following neutral criteria and even-handed policies, extends benefits to recipients whose ideologies and viewpoints, including some that are religious, are broad and diverse.

Stone v. INS (1995)

Topic: Government Agencies

The timely filing of a motion to reconsider an administrative order renders the underlying order non-final for the purposes of judicial review.

McKennon v. Nashville Banner Publishing Co. (1995)

Topic: Labor & Employment

An employee discharged in violation of the ADEA is not barred from all relief when, after their discharge, their employer discovers evidence of wrongdoing that, in any event, would have led to their termination on lawful and legitimate grounds had the employer known of it.

Brooke Group Ltd. v. Brown & Williamson Tobacco Corp. (1993)

Topic: Antitrust

A claim of primary-line competitive injury under the Robinson-Patman Act has the same general character as a predatory pricing claim under Section 2 of the Sherman Act. In either case, a plaintiff must prove that the prices at issue are below an appropriate measure of its rival's costs, and the competitor had a reasonable prospect of recouping its investment in below-cost prices.

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)

Topic: Religion

If the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral. It is invalid unless it is justified by a compelling interest and narrowly tailored to advance that interest.

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

Topic: Due Process; Abortion & Reproductive Rights

An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.

Lee v. Weisman (1992)

Topic: Religion

Including clergy who offer prayers as part of an official public school graduation ceremony is forbidden by the Establishment Clause.

Edmonson v. Leesville Concrete Co., Inc. (1991)

Topic: Lawsuits & Legal Procedures

A private litigant in a civil case may not use peremptory challenges to exclude jurors on account of race.

Minnick v. Mississippi (1990)

Topic: Miranda Rights

When counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, regardless of whether the accused has consulted with their attorney.

Illinois v. Perkins (1990)

Topic: Miranda Rights

Miranda warnings are not required when the suspect is unaware that they are speaking to a law enforcement officer and gives a voluntary statement.

Ward v. Rock Against Racism (1989)

Topic: Free Speech

Even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided that the restrictions are justified without reference to the content of the regulated speech, they are narrowly tailored to serve a significant governmental interest, and they leave open ample alternative channels for communication of the information.

Skinner v. Railway Labor Executives Ass'n (1989)

Topic: Government Agencies

Drug and alcohol tests mandated or authorized by Federal Railroad Administration regulations were reasonable under the Fourth Amendment, even though there was no requirement of a warrant or a reasonable suspicion that any particular employee may be impaired, since the compelling government interests served by the regulations outweighed employees' privacy concerns.