WASHINGTON — When Tony Kennedy was a child in Sacramento, a frequent guest at his family's home was the popular Republican governor, Earl Warren.
Kennedy's father, Bud, was a prominent lobbyist and an admirer of the governor. He "always used to tell me what a principled man Earl Warren was," Kennedy recalled in an interview.
By the time young Kennedy was a college student at Stanford in the late 1950s, his family friend -- now Chief Justice Earl Warren -- had won legions of admirers across the nation as the liberal leader of the Supreme Court.
Nearly two decades after Warren stepped down, another popular California governor was in the White House. When President Reagan named Anthony M. Kennedy to the Supreme Court, he did so with hopes of reversing the liberal legacy of the Warren Court.
But these days, there are as many echoes of Earl Warren as of Ronald Reagan in the opinions of Justice Kennedy.
It was the principles framed by Warren that showed in Kennedy's majority opinion last week as the court ruled 5 to 4 to abolish the death penalty for juveniles.
Warren, who led the Supreme Court from 1953 to 1969, saw the Constitution not as a set of 18th century legal rules, but as a guarantee of fairness and decency for all Americans.
When confronted with state-imposed racial segregation in the schools of South, Warren did not look to history to discern the view of the Constitution's authors. Instead, he looked at the reality of 20th century America.
"We conclude that in the field of public education, the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal," Warren wrote in his first major opinion, the landmark Brown vs. Board of Education ruling.
When called upon to decide what is "cruel and unusual punishment," Warren said the court must not be bound by the past, but instead should look to "the evolving standards of decency that mark the progress of a maturing society."
Warren's admirers saw his court as a voice for idealism and an inspiration for the civil rights movement. To its critics, the Warren Court represented judicial imperialism. Across the South, "Impeach Earl Warren" signs went up along the roadsides.
The critics were not limited to the South.
They included the governor of California -- who complained that unelected, activist judges were becoming a threat to democracy. Judges, said Reagan, were making the law in areas such as abortion, school prayer and the death penalty.
As president, Reagan promised to appoint conservatives who shunned the style of judicial activism represented by the Warren Court. And in 1987, when the Senate rejected his choice of Judge Robert Bork for the Supreme Court, Reagan turned to an old friend from his Sacramento days, Anthony Kennedy.
Thanks to a push from then-Gov. Reagan, Kennedy had been named as a U.S. appeals court judge in 1975, when he was 38. He went on to compile a record as a moderate conservative. In the wake of the Bork battle, Kennedy was just enough of an enigma to win an easy, unanimous confirmation from a relieved Senate.
Eighteen years later, when confronting the issue of whether teenage murderers can be put to death, Kennedy said the court must look "to the evolving standards of decency that mark the progress of a maturing society," quoting Warren's words. "We must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles" today, he added.
The Constitution has "come to earn the high respect and even the veneration of the American people," Kennedy concluded, because of its living principles. "By protecting even those convicted of heinous crimes, the 8th Amendment [and its ban on 'cruel and unusual punishments'] reaffirms the duty of the government to respect the dignity of all persons."
It would be hard to imagine Chief Justice William H. Rehnquist or Justice Antonin Scalia writing such words -- or agreeing with them. They say the Constitution must be grounded in history and interpreted narrowly.
"What a mockery!" Scalia said in his dissent to Kennedy's opinion in the juvenile death penalty case. Rather than look to "the original meaning of the 8th Amendment," Kennedy was "looking into the mirror" to find the meaning of the Constitution, Scalia said.
This dispute is not new or likely to go away soon. Repeatedly, the Supreme Court has split between justices who look to the past and those who look to the present when deciding major controversies in constitutional law, including on abortion, religion, gay rights and the death penalty.
While Scalia and Rehnquist say the court must interpret the law as it was, Kennedy says the court must look to today's world to decide issues involving liberty, equality and such amorphous terms as "cruel and unusual punishment." As a result, Kennedy -- Reagan's third and final appointee -- often finds himself speaking for the court in announcing its most significant liberal decisions.
