The legacy of Justice Anthony Kennedy


Justice Anthony Kennedy captured the nation’s attention the last day of the 2017-18 Supreme Court term when he announced his retirement. He has been an influential and stable member of the Court for more than 30 years, and his absence will be felt. Depending on his replacement, the Court could shift in terms of ideology as well. There will be time to talk about his replacement later. For right now, let’s focus on Justice Kennedy.

In my opinion, Justice Kennedy can be described as a conservative thinker with a libertarian streak. He was strongly connected to the Republican party, having worked for Ed Meese early in his career. He was appointed to the Ninth Circuit Court of Appeals in 1975, at which time he was the youngest Circuit Court of Appeals judge in the nation. Justice Kennedy was nominated to the Supreme Court by President Ronald Reagan in 1988 (replacing Justice Lewis F. Powell) after the nomination of Robert Bork went off the rails and was rejected by the Senate. Kennedy was confirmed unanimously.

I will spare you a list of every Supreme Court case during his tenure, but I want to highlight some important cases in which Justice Kennedy’s unique voice made a critical difference. He has been the majority opinion author (and swing vote) in many cases involving individual liberties; his line of reasoning being along more libertarian lines than mainstream civil rights ideology.

Some of his notable opinions include:

Obergefell v. Hodges (2015)

This 5-4 decision held that same-sex couples have the right to marry anywhere in the U.S., noting that the U.S. Constitution’s guarantees of due process and equal protection prohibit states from banning same-sex couples from marriage.

Roper v. Simmons (2005)

This 5-4 decision held that it was unconstitutional to execute individuals for crimes they committed when they were younger than 18 based on Eighth Amendment protections against cruel and unusual punishment.

Citizens United v. Federal Elections Commission (2010) 

This 5-4 decision removed the caps from independent political spending by corporations as contrary to the First Amendment rights to free speech.

Justice Kennedy has an education connection, since his mother was a teacher. He paid attention to education issues and authored many decisions which have had an impact on students, schools, and educators. These include:

Lee v. Weisman (1992)

Kennedy had a change of view and made up the five Justices needed to rule that clergy-led prayers at public school graduation ceremonies were a violation of the Establishment Clause. In the decision, he states, “There are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools” and “The Constitution forbids the state to exact religious conformity from a student as the price of attending her own high-school graduation.”

Freeman v. Pitts (1992)

The Court, in a unanimous decision, held that federal judges could end supervision of school desegregation plans in stages, maintaining control over issues not yet resolved. In a five-justice concurrence authored by Kennedy, the Court held that schools did not have to rectify segregation caused by demographic shifts and housing patterns. “Residential housing choices, and their attendant effects on the racial composition of schools, present an ever-changing pattern, one difficult to address through judicial remedies.”

Owasso Ind. School District v. Falvo (2002)

Kennedy wrote the opinion for a unanimous Court holding that the Family Education Rights and Privacy Act did not bar the practice of students exchanging papers and quizzes so they could grade each other’s work. Taken to the extreme, the plaintiff’s argument was that “if a teacher in any of the thousands of covered classrooms in the nation puts a happy face, a gold star, or a disapproving remark on a classroom assignment, federal law does not allow other students to see it . . . We doubt Congress meant to intervene in this drastic fashion.”


JULIE UNDERWOOD ( is the Susan Engeleiter Professor of Education Law, Policy, and Practice at the University of Wisconsin-Madison.

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