WASHINGTON—The retirement of Anthony M. Kennedy brings to an end the tenure of one of the Supreme Court’s most consequential modern-day justices, the author of landmark rulings on gay rights, the death penalty and campaign finance and one of the last bearers of the case-by-case jurisprudence and old-fashioned politesse that once marked the court.

In his typically low-key manner, Justice Kennedy held his plans close Wednesday, surprising even fellow justices when he announced his retirement at their private gathering following the court’s morning sitting. Then he made the short trip up Pennsylvania Avenue to hand-deliver his resignation letter to President Donald Trump at the White House.

“It is undeniable that he has had a monumental effect on the law,” said his colleague on the high court, Justice Sonia Sotomayor, regarding his retirement.

The 81-year-old Justice Kennedy, an idiosyncratic conservative, spent much of his tenure situated at the ideological center of a court increasingly divided into liberal and conservative camps that are sharply, sometimes bitterly divided on hot-button issues. His judicial leanings often left him in play for both sides, making him a pivotal figure in many of the court’s most important rulings, and lawyers on both sides of a closely fought case often tailored their arguments largely to him.

He was often described as the court’s swing justice, a moniker he never embraced. “I hate that term,” he said to laughter during an appearance in 2015 at Harvard Law School. “The cases swing. I don’t.”


Justice Kennedy was born and raised in Sacramento, Calif., where his high school friends included the future author and essayist, Joan Didion. He was confirmed by the Senate on a 97-0 vote and joined the court in 1988. He was a more moderate nominee than President Ronald Reagan originally intended for the seat left vacant by the retirement of Justice Lewis Powell. But the president’s two earlier nominations, of Robert Bork and Douglas Ginsburg, had failed because of partisan wrangling and personal revelations.

For three decades, Justice Kennedy left an imprint on the high court that few others could match.

On the conservative side of the ledger, he was part of majorities that loosened campaign-finance restrictions, recognized individual gun-ownership rights and decided that voting-rights protections dating to the Jim Crow era imposed too heavy a burden on states in the modern-day South.

Supreme Court Associate Justice Anthony M. Kennedy gives the thumbs up after taking the constitutional oath during ceremonies at the White House February 18, 1988 as Ronald Reagan looks on. Photo: Doug Mills/Associated Press

He wrote the court’s 2010 opinion in Citizens United v. Federal Election Commission, which struck down longstanding restrictions on corporate and union political spending in elections. He also was part of the 5-4 conservative majority in Bush v. Gore that resolved the dispute in the 2000 presidential election.


Justice Kennedy, however, joined with his liberal colleagues on an array of blockbuster rulings that are likely to define his legacy—none more so than on gay rights. In 2015, he wrote the court’s 5-4 ruling in Obergefell v. Hodges establishing that same-sex couples have a constitutional right to marry. He also authored decisions that struck down a U.S. law denying federal benefits to legally married same sex couples and a Texas statute that made it a crime for two people of the same sex to engage in intimate sexual activity.

Supreme Court Decisions of 2018

The justice was the swing vote “in part because he was more of a judicial statesman and a peacemaker than an ideologue,” said Randy Beck, associate dean at the University of Georgia School of Law and a former Kennedy law clerk.

Even when Justice Kennedy staked out positions in major controversies, “he recognized that in our divided culture there are important issues at stake for both sides,” Mr. Beck said. “He was always careful to talk about those interests.”

In typical fashion, a recent case found Justice Kennedy sympathetic both to a gay couple for whom a baker refused to create a wedding cake, and to the baker, who felt his religious sensitivities had been insulted.


Justice Kennedy also was an important figure limiting the application of the death penalty, citing the Eighth Amendment ban on cruel and unusual punishment. In 2002, he was part of a majority that barred the execution of the intellectually disabled. Three years later, he wrote the court’s opinion prohibiting capital punishment for juvenile offenders. In 2008, he was the author of a decision barring the death penalty for nonhomicide offenses like child rape.

In addition to his death-penalty jurisprudence, Justice Kennedy offered pointed criticisms of the American criminal-justice system, saying it put too many people in jail for too long. He voiced concern about the use of solitary confinement in U.S. prisons. And he provided critical votes in Supreme Court rulings that faulted the Bush administration and Congress for limiting legal rights and procedures available to suspected terrorists held at the U.S. military prison at Guantanamo Bay, Cuba.

Supreme Court Justices sit for a formal group portrait at the Supreme Court in Washington, Nov. 9, 1990. Standing from left are Associate Justices Anthony M. Kennedy; Sandra Day O'Connor; Antonin Scalia; and David Souter. Seated from left are Harry A. Blackmun; Byron R. White; Chief Justice William H. Rehnquist; Thurgood Marshall; and John Paul Stevens. Photo: Bob Daugherty/Associated Press

Northwestern University law professor John McGinnis said Justice Kennedy brought “Western, rugged individualism to the court,” and in some ways embodied the modern tension among conservatives because his jurisprudence prioritized individual liberty even when the liberties he championed clashed with tradition.

“Not surprisingly, Kennedy often divided the right, because the right has a divide within itself,” Mr. McGinnis said.


Though Justice Kennedy mostly voted with them, Republicans could be suspicious of his leanings and his sometimes lofty sense of the judicial role. Staunch legal conservatives, both on and off the court, could be sharp in criticizing him when he strayed.

Justice Kennedy eschewed a formalistic approach like Justice Antonin Scalia’s focus on the original meaning of the Constitution or the method Justice Stephen Breyer has laid out in books such as “Active Liberty,” which applies the law in light of the Constitution’s broader purposes.

“Justice Kennedy is not a methodologist,” Mr. McGinnis said. “He was really trying to create a Constitution of workable liberties for our time.”

While coy when asked his potential retirement plans—“you won’t be the first to know,” was his stock answer—there were growing signals that Justice Kennedy, after 30 years, had concluded his work was done. In recent cases that could have afforded him the chance to establish broad principles of constitutional law in areas he long had made a focus: political gerrymandering, religious exercise and gay rights—Justice Kennedy instead chose to stand down, writing opinions that left contentious issues for another day and, it proved, another justice.

At the same time, his final days displayed a return to his roots as a Reagan-appointed conservative, after sometimes dizzying explorations of law that made him, in discrete areas, a darling of liberals.

In this last week of the Supreme Court’s term, he joined his four fellow conservatives to uphold the president’s travel ban, challenge public-sector unions, dilute antitrust law, block state regulation of antiabortion pregnancy centers and uphold legislative districts a lower court found to be racially discriminatory.

Those decisions prompted blistering dissents from the court’s liberals, whose dreams of regaining a majority lost since 1970 briefly seemed tangible following the 2016 death of Justice Scalia. Instead, they saw such hopes indefinitely postponed after Senate Republicans blocked President Barack Obama from filling the vacancy, and deferred perhaps for a lifetime now that President Trump is poised to make a second appointment.

Groups that had celebrated Justice Kennedy’s more liberal rulings in recent years said they were unnerved by his decision to step down now and his choice to endorse strong conservative positions in this last months, while passing up a chance this year to leave a further imprint in areas like gay rights.

In his final days on the court Justice Kennedy “heralded in a Muslim ban and left open the question of whether the far right has a license to discriminate against the LGBT community and other marginalized groups,” said Rachel Tiven, the head of Lambda Legal, an organization that works to protect LGBT rights.

For 18 years, Justice Kennedy shared the court’s ideological center with Justice Sandra Day O’Connor, also nominated by Mr. Reagan. After she retired in 2006, Justice Kennedy’s already sizable influence on the court grew, underscored by the court’s rulings on the issue of abortion.

A Roman Catholic, Justice Kennedy found himself aligned with different blocs of justices depending on the type of abortion restriction under review. In 1992, he was part of a group of justices that reaffirmed the right to an abortion established in Roe v. Wade. In 2016, he joined with court liberals to strike down parts of a Texas law that had forced some abortion clinics in the state to close. But in 2007 he wrote the court’s 5-4 opinion upholding a federal ban on so-called partial-birth abortions, a ruling made possible after Justice Samuel Alito succeeded Justice O’Connor and strengthened the court’s conservative wing.

The son of a Sacramento lawyer and lobbyist, Justice Kennedy grew up in a family that was politically and socially active. His childhood exposed him to leading officials like the state’s Republican governor, Earl Warren, who later became chief justice.

Justice Kennedy graduated from Stanford University and Harvard Law School. He worked as a lawyer in private practice in San Francisco then Sacramento from 1961 to 1975, when President Gerald Ford appointed him to the U.S. Circuit Court of Appeals, in San Francisco. He also taught constitutional law at the University of the Pacific for 23 years.

Aside from Justice Kennedy’s frequent status as swing vote, his tenure on the Supreme Court may be best remembered for his sweeping statements and ornate writing style. He produced memorable passages in court decisions but also prompted criticism that he could sound more like a philosopher than a judge.

One example came in Justice Kennedy’s same-sex marriage opinion, which began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

This proved too much for Justice Scalia, who in dissent said the Supreme Court “has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

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Gay couples, however, found the language in Justice Kennedy’s opinion moving, so much so that some quoted passages from it during their wedding ceremonies.

Justice Kennedy, who repeatedly returned to the concept of dignity and virtue of civility, signed Wednesday’s resignation letter to the president “respectfully and sincerely.” But even as he hands Mr. Trump the power to fill his pivotal seat, he appealed to the president’s better angels in a short concurring opinion the day before when he joined the court’s decision to uphold the president’s travel ban.

“The very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise,” he wrote.

Write to Brent Kendall at brent.kendall@wsj.com and Jess Bravin at jess.bravin@wsj.com

Corrections & Amplifications

Supreme Court Justice Anthony Kennedy didn’t side with the liberal wing of the court in any 5-4 decisions in the 2017-18 term. A chart that appeared with an earlier version of this article incorrectly showed that he joined the liberals in 27% of cases. (June 28, 2018) A chart showing the percentage of Supreme Court 5-4 cases decided in conservatives’ favor accompanying an earlier version of this article mislabeled 2010-2011 and 2015-2016. (July 26, 2018)