With Kennedy's Exit, California Loses a Singular Voice on the Supreme Court

Justice Anthony Kennedy. (Photo: Diego M. Radzinschi/ALM)

Justice Anthony Kennedy may not have been everything California wanted in a Supreme Court justice. But he was a native son.

Born in Sacramento, Kennedy delivered rulings in his three decades on the high court that bitterly disappointed the state’s liberal voters—but also some they could celebrate. He authored the 2015 decision establishing marriage equality; sided, at least sometimes, with abortion rights advocates; and led the court to outlaw the death penalty for juvenile offenders.

For California lawyers, Kennedy’s departure during an era of bitter partisanship brings a sense not only that the Supreme Court is bound to grow more conservative but also that it's losing touch with a West Coast brand of conservatism that takes a more compassionate view on social issues like gay marriage, affirmative action and abortion rights.

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"What the Supreme Court and California, and in some ways America, are losing is a justice [whose approach] to laws captures Western conservatism, at least toward the mid-to-late 20th century," said Ben Feuer, chairman of the California Appellate Law Group. "That is an approach that is largely going to favor liberty, often for business against government intrusion, but still has a baseline level of respect for individual decisions that are outside of the mainstream."

There are no Californians on President Donald Trump's shortlist of potential nominees, which favors judges from Midwestern and Eastern states.

"That’s a shame,” said Rory Little, a professor of law at UC-Hastings, “because I think geographic diversity is as important as all sorts of other diversity concerns."

Kennedy brought individualism and independence to the court, Little said, traits he associates with the Golden State.

Kennedy grew up in Sacramento, where his father practiced law and attended college at Stanford University. He went on to graduate from Harvard Law School and returned to California and took over his father's law practice. Then-Gov. Ronald Reagan recommended Kennedy’s appointment to the U.S. Court of Appeals for the Ninth Circuit in 1975, and Kennedy served on the appeals court until his confirmation to the U.S. Supreme Court in 1988.

Erwin Chemerinsky, dean of UC-Berkeley School of Law, noted in an email that Kennedy represented "views parallel those of moderate conservatives from all areas of the country," views he said could be missing from the Supreme Court in the near future.

There are a lot of ways to analyze diversity on the Supreme Court. Racial and gender diversity have been pressing concerns, with academic and geographic diversity often deemed secondary considerations. But once Kennedy departs, the Supreme Court will skew even more heavily toward the Northeast.

The main outliers are Justice Neil Gorsuch, who was born in Denver and served on the U.S. Court of Appeals for the Tenth Circuit and Justice Clarence Thomas, who grew up in Savannah, Georgia, and practiced law in Missouri before career opportunities brought him to Washington, D.C. Justice Stephen Breyer was born in California and like Kennedy attended Stanford University and Harvard Law School. However, Breyer's career led him to the East Coast, from Washington, D.C., to a teaching post at Harvard Law School to a seat on the U.S. Court of Appeals for the First Circuit.

Michael Schwartz, dean of the University of the Pacific's McGeorge School of Law, where Kennedy has a long affiliation, said the impact of Sacramento on Kennedy's politics was apparent.

"Justice Kennedy’s judicial and political views were very consistent with the purple-ish politics of Sacramento, when he grew up and when he came of age as an attorney practicing in Sacramento," Schwartz said.

But Schwartz also noted that the Sacramento of Kennedy's youth is not the Sacramento of today—the city and California in general have shifted further left. That's especially true for issues such as gun rights, Schwartz noted.

Because Kennedy's home state has generally moved to the left of many of his own views, Feuer said it's unlikely the justice's retirement will change the dynamic for appellate lawyers arguing before the Ninth Circuit with an eye toward possible appeal before the U.S. Supreme Court.

While Kennedy's replacement may be more conservative, the seat will still likely move from one conservative to another. Feuer noted that in his last term, Kennedy sided with several rulings against California, including a state law requiring more transparency from crisis pregnancy centers.

"[It's] moving from a court that was pretty conservative to one that will probably be more conservative," Feuer said. "It won’t change the way the Ninth Circuit does business."

That doesn't mean the loss of a Ninth Circuit alum on the court will be painless. Little noted that Kennedy's retirement comes at a time when both Congress and the White House are in Republican hands. Shifting the Supreme Court further right, while also losing a California justice, may lead to further alienation in the majority-blue state.

"It’s too bad," Little said. "California is a major population center and a major economic center, and to feel that we’re not represented in any branch of the government is not a good thing."