Path to the Supreme Court
In October Term 2006, across an entire year of the Supreme Court's work, Anthony Kennedy was in the minority twice. In the term's twenty-four cases decided five to four or five to three, he was in the majority every time. The Court had a swing seat before him and has been built to avoid one since, but no justice ever held it the way he did; the legal press stopped pretending otherwise, and Jeffrey Toobin's verdict that year was that the Court was dominated by Kennedy 'in a way that no justice has dominated a court' in his experience. The man himself spent thirty years rejecting the premise. 'The cases swing, I don't,' he told a Harvard audience in 2015, and his memoir makes the same claim in the past tense: 'The cases swung, not me.' This site's numbers will weigh that defense below. What nobody disputes is the strangeness of the arrangement that produced it: the most powerful judicial officer of his generation reached the Court as a third choice, after one nominee was voted down and another withdrew, precisely because he seemed the least likely man in America to surprise anyone.
He was born in Sacramento on July 23, 1936, the son of Anthony J. Kennedy, a lawyer and lobbyist at the capitol, and Gladys Kennedy. The boy grew up inside California government the way other boys grow up inside a family store: a page in the State Senate from the fourth grade through the eighth, where he came to know Governor Earl Warren, who later sent the young man a letter he eventually gave to the Supreme Court Historical Society: 'You're going to go very far in government.' His father took him along to trials in the small towns of Northern California; 'I probably saw ten trials before I was out of high school and took notes at the counsel table,' he recalled. Stanford took him next, with a final undergraduate year at the London School of Economics, and Harvard Law School graduated him in 1961. He had barely begun at a San Francisco firm when his father died suddenly in 1963, and the son went home to wind up the Sacramento practice. 'I actually went to close the practice,' he said long afterward, 'but it reached out and engulfed me and I never got out.' The same year he married Mary Davis; they raised three children. In 1965 he added the second occupation of his life, a professorship in constitutional law at McGeorge School of Law that he would hold in one form or another for half a century, including, from 1990, its summer program in Salzburg.
Sacramento made him a Reagan man before Washington did. In the early 1970s he helped draft Proposition 1, Governor Reagan's tax-limitation initiative, working with Reagan's aide Edwin Meese; the measure lost at the polls in 1973, but the drafting impressed the governor's circle, and when a Ninth Circuit seat opened, President Ford nominated the thirty-eight-year-old on Reagan's recommendation in March 1975. He served twelve years and, by Reagan's later count, took part in more than 1,400 decisions. The one that mattered most was Chadha: in 1980 Judge Kennedy struck down the one-house legislative veto by which Congress had reserved the power to overturn executive decisions, and in 1983 the Supreme Court agreed, invalidating at a stroke a device woven through two hundred statutes.
The seat he eventually filled was Lewis Powell's (§99), and he got it the hard way. Powell retired in June 1987; Robert Bork was defeated 58 to 42 in October after the fiercest confirmation war the modern Senate had seen; Douglas Ginsburg withdrew nine days after his selection, undone by a marijuana disclosure. On November 11, 1987, Reagan announced his third choice, calling Kennedy 'what many in recent weeks have referred to as a true conservative,' one who believed 'that it is we, the people who have granted certain rights to the Government, not the other way around.' The exhausted capital found nothing to fight about. The American Bar Association rated him well qualified unanimously, in pointed contrast to its split over Bork, and among major liberal groups only the National Organization for Women announced opposition. At his December hearings he offered the Judiciary Committee a sentence that should have complicated the 'true conservative' billing: the Constitution, he said, marks 'a zone of liberty, a zone of protection, a line that's drawn where the individual can tell the Government, "Beyond this line you may not go."' The Senate confirmed him 97 to 0 on February 3, 1988, and he was sworn in on February 18: the 104th justice, and still the most recent to be confirmed without a single vote against him.
On the Supreme Court
The zone-of-liberty sentence turned out to be the honest prospectus. His first full term produced the concurrence that announced his terms of employment: joining the Court's protection of flag burning in Texas v. Johnson (1989), he wrote that 'the hard fact is that sometimes we must make decisions we do not like,' because the law compels them, and that 'it is poignant but fundamental that the flag protects those who hold it in contempt.' Three years later came the vote conservatives never forgave. In Planned Parenthood v. Casey (1992) he joined Sandra Day O'Connor (§102) and David Souter (§105) in the joint opinion preserving what it called Roe's essential holding, and the sentence most identified with his pen became the era's most contested piece of judicial prose: 'At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.' Antonin Scalia (§103) filed it away, and in his Lawrence dissent mocked the 'famed sweet-mystery-of-life passage.' Kennedy never retreated. In Romer v. Evans (1996) he wrote for six justices that Colorado could not strip gay citizens of civil-rights protections: 'A State cannot so deem a class of persons a stranger to its laws.'
That sentence began the project history will likely name him for. In Lawrence v. Texas (2003) he overruled Bowers v. Hardwick, the seventeen-year-old precedent permitting sodomy prosecutions, in language aimed past the parties at the future: 'Bowers was not correct when it was decided, and it is not correct today.' The framers of the Due Process Clauses, he wrote, '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. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.' United States v. Windsor (2013) struck the federal marriage definition, and Obergefell v. Hodges (2015) completed the quartet, ending with the paragraph read at weddings ever since: 'No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.' 'They ask for equal dignity in the eyes of the law. The Constitution grants them that right.' The same instinct ran through his Eighth Amendment cases, Roper v. Simmons (2005) ending the juvenile death penalty, and through Boumediene v. Bush (2008), which carried habeas corpus into Guantanamo: 'The laws and Constitution are designed to survive, and remain in force, in extraordinary times.' The vocabulary drew fire as well as devotion; 'dignity,' one representative critic complained, 'is not in the Constitution and is ill-defined, vague and uncertain.'
The other Kennedy wrote Citizens United v. FEC (2010). For him it was the same commitment pointed the other way, the individual against the censor: 'political speech must prevail against laws that would suppress it, whether by design or inadvertence.' The country heard something else, a five-vote Court opening elections to corporate money, and the case became the left's shorthand for the era exactly as Casey was the right's. That symmetry was his position for three decades. By the Supreme Court Database's coding, as computed for this site, he cast a liberal vote in 41.8 percent of more than 2,700 coded cases, against a 48.9 percent average for the colleagues who sat with him: a raw share that reads as solidly conservative. Measured against his own bench he rises nine places in the site's rankings, from 25th of 33 to 16th, a climb the left-to-right page singles out, which is what being the man in the middle of a conservative Court looks like in arithmetic. His dissent rate tells the same story more bluntly: 8.3 percent, against his colleagues' 18.6, less than half, because for most of his tenure the majority was wherever he was. And on his own defense, that the cases swung while he stood still, the data is unsentimental: his voting moved 9.3 points toward the liberal side between his first third and his last, the ninth largest drift in the database, and the site's decomposition attributes 8.4 of those points to the justice rather than the bench. The cases swung. So did he.
In person he was the Court's courtliest member, a man whose bow to one clerk's mother made her declare him a gentleman, and its most caricatured deliberator: the agonizer, forever suspended between camps. The people who watched him work pushed back; one clerk wrote that a year in his chambers 'belied the notion that Justice Kennedy is an agonized Hamlet figure.' He taught every summer in Salzburg, kept Sacramento in his voice, and lectured relentlessly on civics. He announced his retirement on June 27, 2018, in a letter expressing 'profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution'; it had been, he wrote, 'the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the Supreme Court.' Ruth Bader Ginsburg (§107) called him 'a true gentleman, a caring jurist, and a grand colleague in all respects.' The succession stayed in the family of his chambers: President Trump nominated Brett Kavanaugh (§114), Kennedy's former clerk, twelve days later. The timing drew reported speculation, which this chapter records without adopting: Politico had reported the White House's careful cultivation of Kennedy, partly through his sons, and later coverage noted that his son Justin had spent a decade at Deutsche Bank, a major Trump lender, before leaving in 2009; fact-checkers who examined the theory that any of this produced the retirement found no evidence for it.
Retirement did not silence him, and the edifice he built began to move the moment he left it. Four years after his departure the Court overruled Casey outright, as the Alito chapter (§110) recounts; Obergefell stands; Citizens United stands. At eighty-nine he published Life, Law & Liberty: A Memoir (2025) and went on the road to defend the old creed. Roe and Casey, he told an interviewer, presented 'a close and difficult case. In my view, our earlier decision was correct.' Of the institution he served: 'In our current discourse, it seems to me, partisanship is creeping its way into the court.' And of the country: 'Democracy is not guaranteed to survive.' He turned ninety in July 2026, still insisting that the power was never his, that he only followed the cases where they led. The record suggests the truth he could never quite say: for one long generation, where he led was where they went.
The Voting Record
How Kennedy voted in the 2,814 cases the Supreme Court Database records from the 1987 term through the 2017 term, using that database’s classification of each vote as liberal or conservative. The gold tick on each bar is the rate for the other justices sitting on those same cases.
Across the whole career Kennedy voted with Rehnquist more than with anyone else — the same side of the judgment in 78.1% of their 1,014 divided cases — and with Stevens least, at 40.8%. See the matrices →Compared against the 13 colleagues Kennedy shared at least 300 divided cases with.
And Kennedy ended 9.3 points more liberal relative to those colleagues than at the start — the ninth-largest shift of the 27 justices with a long enough record to measure. See who changed →
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
Lawrence v. Texas
2003Holding · Laws criminalizing intimate conduct between adults of the same sex violate the liberty protected by the Due Process Clause.
Role · Kennedy wrote for the Court, overruling Bowers v. Hardwick (1986, White §93).
The heart of the gay-rights revolution he authored, grounded in liberty and dignity rather than narrow doctrine.
Read the opinion →Obergefell v. Hodges
2015Holding · The Constitution guarantees same-sex couples the right to marry nationwide.
Role · Kennedy wrote for a five-to-four Court.
The culmination of a twenty-year arc, and one of the most consequential civil-rights rulings of the century.
Read the opinion →Citizens United v. FEC
2010Holding · The First Amendment bars the government from restricting independent political spending by corporations and unions.
Role · Kennedy wrote for the Court.
Transformed American campaign finance and remains among the most debated decisions of the era — the swing vote at its most conservative.
Read the opinion →Go Deeper
For three decades Anthony Kennedy was the vote that decided America's deepest disputes — the pivotal justice of the Rehnquist and Roberts Courts, whose single ballot could turn on abortion, the death penalty, race, campaign finance, and, above all, the constitutional status of gay Americans. A soft-spoken Sacramento lawyer and Reagan appointee confirmed in 1988 only after the Senate rejected Robert Bork, Kennedy resisted the labels of both wings; he cared, more than most, about human 'dignity' and 'liberty,' words that recur through his opinions. He wrote the Court's great gay-rights quartet, from Romer through Lawrence v. Texas — which struck down sodomy laws — to Obergefell v. Hodges, which established a nationwide right to same-sex marriage; he joined the centrist opinion that saved Roe in Casey; and he also wrote Citizens United, unleashing corporate money into politics in the name of the First Amendment, a reminder that the swing vote swung both ways. There is no full popular biography; the best guides are the studies of his jurisprudence. Begin with Colucci, then read Lawrence and Obergefell, and set Citizens United beside them.
The Bookshelf
The best single study of how Kennedy thought, and the natural starting point given the absence of a full biography. Colucci argues that Kennedy was not merely a splitter of differences but a justice with a coherent, if contested, philosophy centered on liberty and human dignity — one that explains votes the left and right each found maddening. Clear and fair-minded, it takes Kennedy's ideas seriously as ideas, and it is the key to the justice whose vote so often was the law. University Press of Kansas.
The best study of Kennedy's constitutional thought — Helen Knowles's argument that a coherent conception of liberty, not mere difference-splitting, runs through his opinions on speech, dignity, and gay rights. The book for the jurisprudence behind the swing vote. Rowman & Littlefield.
The opinion that overruled Bowers v. Hardwick and struck down laws criminalizing intimate conduct between adults of the same sex. Kennedy grounded the decision not in narrow doctrine but in liberty and dignity — the right of persons 'to define one's own concept of existence' and to be free of state condemnation of their private lives. Scalia's furious dissent (§103) warned it would lead directly to same-sex marriage; twelve years later, in Kennedy's own hand, it did. Read it as the heart of the gay-rights revolution he authored, and as the clearest window into his jurisprudence of dignity.
Kennedy's culminating opinion, establishing a constitutional right to marry for same-sex couples nationwide — the capstone of a twenty-year arc he had begun in Romer and carried through Lawrence and Windsor. Rooted in liberty, equality, and dignity rather than tight legal syllogism, its soaring final passages became some of the most quoted lines in modern constitutional law, even as dissenters and critics faulted its reasoning as more lyrical than rigorous. Read it as the emotional and doctrinal summit of the swing justice's career, and judge for yourself whether its rhetoric matches its logic.
The decision that shows the swing vote swinging right, and a corrective to any simple picture of Kennedy as a liberal on social questions. Writing for a five-to-four Court, he held that the First Amendment bars the government from limiting independent political spending by corporations and unions, transforming the landscape of American campaign finance. Denounced by critics as a charter for unlimited money in politics and defended by Kennedy as a vindication of free speech, it is essential for understanding the whole justice — libertarian on speech as much as on personal dignity. Read it beside Lawrence and Obergefell.
Kennedy's own account, published in October 2025 — Sacramento, the 1987 nomination after Bork, and unusually candid reflections on Casey, Obergefell, and the swing-seat decades. The most revealing thing the Court's pivotal justice has ever put on paper, and the obvious first book on him now. Simon & Schuster.
The major post-retirement scholarly volume — fifteen scholars on Romer, Casey, and Obergefell, on 'the sweet mystery of life,' and on the blind spots. The assessment that brings this shelf forward from 2009. Penn State University Press.
The standard modern biographical encyclopedia of the Court: a signed essay on each of the 110 justices from Jay to Alito, alphabetically arranged, by a named scholar or journalist. Length tracks reputation — two pages for Thomas Johnson, three for Woods, eleven for Holmes — which is itself a rough map of who the literature has bothered with. It is not a substitute for a biography, and for the justices who have never had one it is often the most careful short account in print. Borrow it free at the Internet Archive.
The one-volume reference on the Court: more than a thousand signed entries on cases, doctrines, institutions and the justices, current to 2005. Cases and people share one alphabet, so a citation can be followed without changing volumes, and the biographical entries are short, written by specialists, and better than a longer sketch at carrying the historiography — what the argument about a justice currently is. Borrow it free at the Internet Archive.
The Reading Path
A researched route through the literature — in order.
- 1.Colucci, Justice Kennedy's Jurisprudence — for the coherent philosophy behind the swing vote
- 2.Lawrence v. Texas — for the heart of the gay-rights revolution he authored
- 3.Obergefell v. Hodges — for the culminating opinion on marriage and dignity
- 4.Citizens United v. FEC — for the other Kennedy — free speech and money in politics
Where the Papers Are Kept
Kennedy retired in 2018, and his judicial papers have not been opened to researchers; whether and where they will be deposited, and under what restrictions, remains to be seen. For now the record of his jurisprudence lies in the published opinions themselves and in the files of colleagues whose papers are open, such as Harry Blackmun's (§98) at the Library of Congress. The Federal Judicial Center and Oyez provide the essential biographical and case record. Visit →
Ideas for Further Research
- The jurisprudence of dignity. 'Dignity' and 'liberty' recur through Kennedy's opinions as touchstones, yet critics complain the words do more emotional than analytic work. Trace the concept of dignity across Romer, Lawrence, Windsor, and Obergefell, and ask whether Kennedy built a genuine constitutional principle or an eloquent vocabulary for conclusions reached on other grounds — and what happens to that principle now that its author has left the Court.
- The power and the peril of the swing vote. For years American law often turned on what Anthony Kennedy would join, making a single justice extraordinarily powerful and outcomes hard to predict. Study the structural consequences of a Court with a decisive center: does it push the law toward moderation and compromise, or concentrate unaccountable power in one person's evolving convictions? Compare his pivotal role with O'Connor's (§102) before him.
- Speech libertarian, dignity liberal. Kennedy protected gay rights and abortion access but also wrote Citizens United and strong free-speech opinions that pleased conservatives. Ask whether a single coherent commitment — to individual liberty against the state — unites these seemingly opposed results, or whether Kennedy is better understood as two justices in one, and what that tension reveals about the limits of labeling justices left or right. Seat lineage: Lewis Powell §99 → Anthony Kennedy → Brett Kavanaugh §114.