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.
