# Anthony Kennedy **Anthony McLeod Kennedy** (born July 23, 1936) served as an Associate Justice of the Supreme Court of the United States from February 18, 1988 to July 31, 2018 — appointed by [[Ronald Reagan]] after the Senate's 1987 rejection of [[Robert Bork]] and the subsequent withdrawal of Douglas Ginsburg. Kennedy was widely characterized as the Court's principal **swing vote** during his three-decade tenure, but his actual voting pattern was more consistent than the swing-vote label suggested: he voted with the conservative majority on most major cases, and was the principal author of several of the Roberts Court's most consequential conservative-direction decisions. Kennedy is the **author of the majority opinion in [[Citizens United v. FEC]]** (2010) — the single most consequential Supreme Court decision for the contemporary American campaign-finance landscape. The Kennedy opinion's reasoning (corporations have [[First Amendment]] rights to political speech on the same terms as natural persons; the *Buckley v. Valeo* anti-corruption rationale cannot justify restrictions on independent expenditures) is the doctrinal foundation of the post-2010 dark-money architecture. ## Early Career and Appointment Kennedy grew up in Sacramento, California, where his father was a prominent lobbyist and lawyer. He earned his undergraduate degree from Stanford University, studied at the London School of Economics, and received his law degree from Harvard Law School. He returned to Sacramento to take over his father's practice at Evans, Jackson & Kennedy after his father's sudden death in 1963, and simultaneously taught constitutional law at McGeorge School of Law for over two decades. In 1975, [[Gerald Ford]] appointed the thirty-eight-year-old Kennedy to the United States Court of Appeals for the Ninth Circuit, making him one of the youngest federal appellate judges in the country. He served on the Ninth Circuit for twelve years, building a reputation as a moderate conservative — respected by both sides but firmly committed to expansive [[First Amendment]] readings. Kennedy reached the Supreme Court as [[Ronald Reagan]]'s third choice for the 1987 vacancy. Reagan's first nominee, [[Robert Bork]], was rejected by the Senate 42-58 after a bruising confirmation battle over Bork's originalist judicial philosophy. Reagan's second nominee, Douglas Ginsburg, withdrew after revelations of past marijuana use. Kennedy, by contrast, sailed through: the Senate confirmed him 97-0 on February 3, 1988. The confirmation ease reflected the political exhaustion after the Bork fight, but it also reflected Kennedy's genuinely more moderate profile compared to Bork — a distinction that would prove consequential over the next thirty years. ## Key Cases Authored or Critically Joined | Case | Year | Kennedy's Role | |---|---|---| | [[Buckley v. Valeo]] | 1976 | Did not participate (joined Court 1988) | | [[Austin v. Michigan Chamber of Commerce]] | 1990 | Dissented (opposed restrictions on corporate spending) | | [[McConnell v. FEC]] | 2003 | Dissented (opposed upholding BCRA) | | [[FEC v. Wisconsin Right to Life]] | 2007 | Concurred in judgment (would have gone further than Roberts/Alito) | | [[Citizens United v. FEC]] | 2010 | **Authored majority opinion** — the decisive 5th vote | | [[McCutcheon v. FEC]] | 2014 | Joined majority | | *[[Obergefell v. Hodges]]* | 2015 | Authored majority opinion (same-sex marriage) | Kennedy's campaign-finance voting pattern was uniformly anti-restriction: from his dissent in *Austin* (1990) through his authorship of *Citizens United* (2010), he consistently held that the First Amendment requires substantial constraint on campaign-finance regulation. The Roberts Court's campaign-finance dismantling project depended on Kennedy's vote across multiple cases. ## Beyond Campaign Finance — The Swing Vote Record Kennedy's "swing vote" reputation derived not from his campaign-finance jurisprudence (where he was reliably conservative) but from a line of individual-rights cases where he broke with his conservative colleagues to author landmark liberal-direction opinions. **LGBTQ rights.** Kennedy authored every major Supreme Court opinion expanding gay rights over a twenty-year arc. In [[Romer v. Evans]] (1996), he wrote the majority opinion striking down a Colorado constitutional amendment that barred any government entity from protecting gay people from discrimination, holding that the amendment failed even rational-basis review because it was motivated by animus. In *Lawrence v. Texas* (2003), he wrote the majority overturning *Bowers v. Hardwick* and striking down state sodomy laws as violations of substantive due process. And in [[Obergefell v. Hodges]] (2015), he authored the 5-4 majority opinion establishing a constitutional right to same-sex marriage under the Fourteenth Amendment's due process and equal protection clauses. The *Obergefell* opinion's language — "the right to marry is a fundamental right inherent in the liberty of the person" — became one of the most quoted passages in modern constitutional law. **Abortion.** In *Planned Parenthood v. Casey* (1992), Kennedy co-authored the plurality opinion with [[Sandra Day O'Connor]] and [[David Souter]] that reaffirmed the core holding of [[Roe v. Wade]] — that the Constitution protects a woman's right to choose abortion before viability. The *Casey* plurality replaced the trimester framework with the "undue burden" standard, but the critical fact for the KB's purposes is that Kennedy's vote preserved *Roe* when five Republican-appointed Justices could have overruled it. Kennedy later shifted rightward on abortion, upholding the federal partial-birth abortion ban in *Gonzales v. Carhart* (2007). **War on terror and detainee rights.** In *Boumediene v. Bush* (2008), Kennedy wrote the 5-4 majority opinion holding that foreign nationals detained at [[Guantanamo]] Bay have the constitutional right to habeas corpus review in federal courts, and that the Military Commissions Act's stripping of habeas jurisdiction was an unconstitutional suspension of the writ. The decision was a significant check on executive power during the [[War on Terror]] and drew fierce conservative criticism. These cases collectively explain why Kennedy's retirement was so consequential: he was the only Republican-appointed Justice willing to author major liberal-direction opinions on individual rights, even as he voted reliably conservative on business, campaign finance, and structural-power questions. ## Justin Kennedy, Deutsche Bank, and the Trump Connection The circumstances surrounding Kennedy's retirement intersect with one of the KB's core threads — the financial relationships that enabled [[Donald Trump]]'s political rise. Kennedy's son, Justin Kennedy, served as Managing Director and Global Head of Real Estate Capital Markets at [[Deutsche Bank]] from approximately 1998 to 2009. During Justin's tenure, Deutsche Bank became virtually the only major financial institution willing to extend large-scale credit to Trump, who had been effectively blacklisted by other major banks after a string of bankruptcies and defaults in the 1990s. Deutsche Bank lent Trump over $1 billion during this period, including approximately $640 million for the Trump International Hotel and Tower in Chicago (2005) and loans for other Trump Organization projects. Justin Kennedy personally oversaw the real estate capital markets division that approved these transactions. He departed Deutsche Bank in 2009, before the bank's subsequent Russian money-laundering scandal became public. The relationship between the Kennedy family and Trump took on additional significance when Anthony Kennedy announced his retirement on June 27, 2018. Reporting by the *New York Times* and others revealed that Trump had actively cultivated a relationship with Kennedy — inviting him to the White House, praising him publicly, and signaling through intermediaries that Kennedy could trust the administration to nominate an acceptable successor. Kennedy reportedly requested that his former law clerk [[Brett Kavanaugh]] be among those considered for the vacancy, and Trump obliged, nominating Kavanaugh on July 9, 2018. No direct quid pro quo between the Deutsche Bank lending relationship and Kennedy's retirement has been proven. But the constellation of facts — Justin Kennedy's bank extending billions in credit to Trump when no other major lender would, the father retiring strategically to give Trump a Supreme Court pick, the father's preferred replacement being nominated — represents the kind of institutional-capture pattern the KB tracks. The financial, personal, and judicial threads are distinct but intertwined, and the full picture is relevant to understanding how the current 6-3 conservative supermajority came into being. ## Retirement Timing and Impact Kennedy announced his retirement on June 27, 2018, effective July 31, 2018. The timing was strategically significant: announcing before the midterm elections gave [[Mitch McConnell]]'s Senate majority a summer confirmation window, and the Republican Senate leadership — which had held open the Scalia vacancy for over a year to deny Obama a pick — moved quickly to confirm Kennedy's replacement before the political landscape could shift. Kennedy was replaced by [[Brett Kavanaugh]], a former Kennedy law clerk, whose contentious confirmation (October 6, 2018, on a 50-48 vote) shifted the Court's median Justice sharply rightward. With Kennedy gone, Chief Justice Roberts became the nominal center of the Court, but Roberts votes with the conservative bloc on most major issues — there is no longer a genuine swing vote on the scale Kennedy represented. The Kennedy-to-Kavanaugh transition is the single most consequential recent inflection point in the [[Conservative Court Capture Timeline]]. Combined with Trump's other appointments (Gorsuch for Scalia, Barrett for Ginsburg), the replacement of the Court's swing vote with a reliable conservative produced the 6-3 supermajority that subsequently overruled [[Roe v. Wade]] in *Dobbs v. Jackson Women's Health Organization* (2022) — undoing the very precedent Kennedy had voted to preserve in *Casey* three decades earlier. The organizations that had spent decades building the judicial pipeline — the [[Federalist Society]], the [[Heritage Foundation]], and the [[Dark Money]] networks that [[Leonard Leo]] coordinated — achieved their structural goal when Kennedy stepped down. ## Significance for the KB For the campaign-finance system the KB tracks, Kennedy's authorship of [[Citizens United v. FEC]] is his most consequential legacy. The opinion's reasoning — that political speech is protected regardless of speaker identity, that the *Buckley* anti-corruption rationale cannot justify restrictions on independent expenditures, that the *Austin* anti-distortion rationale is constitutionally invalid — is the structural premise of the contemporary dark-money architecture. Without the Kennedy opinion, the post-2010 system would not exist in its current form. The conventional characterization of Kennedy as a "swing Justice" understates his consistency on campaign-finance issues. From 1990 (his *Austin* dissent) through 2010 (his *Citizens United* majority), Kennedy was a reliable vote for substantial First Amendment constraint on campaign-finance regulation. The label "swing vote" derived primarily from his more variable voting on social-issues cases (same-sex marriage, abortion) where he sometimes joined the Court's liberal wing. ## See Also - [[Citizens United v. FEC]] — the decision he authored - [[Austin v. Michigan Chamber of Commerce]] — the case *Citizens United* overruled; Kennedy had dissented in *Austin* - [[Obergefell v. Hodges]] — same-sex marriage opinion he authored - [[Romer v. Evans]] — his first major LGBTQ-rights opinion - [[Roe v. Wade]] — the precedent he voted to preserve in *Casey* (1992) - [[Brett Kavanaugh]] — his replacement and former clerk - [[Deutsche Bank]] — Justin Kennedy's employer; Trump's principal lender - [[Donald Trump]] — the President who cultivated Kennedy's retirement - [[Conservative Court Capture Timeline]] — the broader judicial-appointments arc - [[Dark Money]] — the financing architecture *Citizens United* enabled - [[Federalist Society]] — the organization central to Kennedy's replacement - [[Supreme Court of the United States]] — the institution