Washington Lawyer May/June 2026
By Diane Kiesel
If Justice Anthony M. Kennedy were a football player, he'd wear number 97. That was the number of votes he received in the Senate when he was unanimously confirmed to the United States Supreme Court in 1988.
It's a number that has not been seen since and is not likely to be seen again. The reason, says Kennedy, can be summed up in one word — "partisanship." He believes that people have lost the ability to disagree about political issues and public policy matters without personally attacking those who disagree with them. "One of the problems with the growing lack of civility, with the decline of civility, is that partisanship takes its place," he says.
Kennedy, who took senior status in 2018 after 30 years on the Supreme Court, is no stranger to disagreement. On the Court he was a staunch defender of liberty whose series of landmark opinions drew criticism from both ends of the political spectrum. Lawrence v. Texas (2003) struck down laws that criminalized consensual sexual activities between gay adults, paving the way for the recognition of gay marriage in Obergefell v. Hodges (2015). Roper v. Simmons (2005) held that children should be spared the death penalty, no matter how vile their crimes. In Citizens United v. Federal Election Commission (2010), Kennedy wrote that prohibiting political spending by corporations and unions was an infringement on free speech. And despite his strong Catholic faith and personal opposition to abortion, Kennedy upheld a woman's right to choose in Planned Parenthood v. Casey (1992), an opinion he co-wrote.
While Kennedy knows that political partisanship has always played a role in the selection and confirmation of judges, he thinks it has become "too predominant, and it means that other qualities that make for a distinguished jurist — moderation, temperament, learning, civility — are given less emphasis."
So, in recent years Kennedy has been on a mission: to urge those in public life to tamp down partisanship and be more civil to one another. He is pounding the drum about civility in his new autobiography, Life, Law & Liberty, as well as in the numerous public and media appearances he's made to promote the book, including in a one-on-one conversation with Washington Lawyer at his daughter's home in New York.
The Case for Constructive Discourse
Like his benefactor, Ronald Reagan (whose voice he can perfectly mimic), the Sacramento-born Kennedy is a quintessential old-school Western gentleman — a courtly country lawyer, right out of central casting. He greets visitors with a friendly smile and twinkling blue eyes behind rimless bifocals. He patiently poses for selfies with his guests and autographs books for them.
These days, Kennedy, 89, walks with a gold-tipped black cane, but that hasn't slowed him down on a book tour that would be punishing for someone even decades younger. Since last October he has appeared at author events around the country and sat down for more than a dozen interviews with national media outlets. After decades of communicating solely through his written opinions, Kennedy is now free to speak his mind — and does — within a set of self-imposed limits. He refuses to criticize the substance of decisions by his former Supreme Court colleagues and is mostly mum about the man in the White House.
Instead, he steers conversations toward finding "a framework for informed inquiry and rational, respectful, and constructive discussions, especially in our own constitutional democracy." By drawing attention to our fractured political dialogue, Kennedy hopes to help "make our civil and civic discourse envied, not reproached, in our own nation and in the rest of the world."
Kennedy has a lot of reasons to be concerned. In the 2025 groundbreaking national study "The Civility Paradox" involving 3,000 U.S. adult respondents, 53 percent described society as uncivil. As civility declines, safety seems to follow. According to the U.S. Capitol Police, threats to members of Congress have grown from 3,939 in 2017 to 9,625 in 2021. In 2024 Reuters reported that threats to federal judges have doubled, with the U.S. Marshals Service investigating 457 serious threats in 2023, up from 224 in 2021.
"We just have to get it back by making an effort, and I think by understanding that, at the end of the day, civility has to be almost the definition of the American nation," Kennedy says. "People on both sides of the equation have to realize there is a lot to disagree about, but you disagree in a civil way."
Not even Kennedy's former colleagues are immune from his civility warnings. During visits to the Court, where he maintains stately, wood-paneled chambers, he doesn't mince words about the need for decorum. "I do tell them [about] the importance of civility in their dialogue with each other and [in] the style of their opinions," he says.
While on the Court, Kennedy himself had been on the receiving end of a lack of civility from a colleague. In his dissent in Obergefell, Justice Antonin Scalia derided Kennedy's majority opinion as "profoundly incoherent," comparing its reasoning to "the mystical aphorisms of the fortune cookie." Scalia later apologized to Kennedy for his intemperate language.
To be clear, Kennedy appreciates robust disagreement about the law. "You should disagree with judges; that's what democracy is all about," he says. But it should be done "without attacking the judge as a person."
Elana Nightingale Dawson, who clerked for Kennedy during the 2015–2016 term, says that the former justice's concern with civility is not new. It was a value he often spoke about and exhibited in his dealings with others. "Civility is woven into the fabric of who he is and how he's proceeded in the world," says Nightingale Dawson.
In her own practice as a litigator at Latham & Watkins LLP in Washington, D.C., Nightingale Dawson has tried to follow Kennedy's message. "Civil, courteous engagement with opponents is something all of us in the legal profession need to practice," she says. "Whatever one views as zealous representation of a client must be balanced with the other important corollary of finding a way to engage collaboratively with those across from us."
Hard Calls That Shaped a Legacy
Kennedy has had plenty of experience with disagreement. In what he considers his most consequential case, Texas v. Johnson (1989), Kennedy was in the 5–4 majority holding that the Constitution protects the right to burn the American flag to express political discontent. In a concurring opinion, Justice Kennedy wrote: "The hard fact is that sometimes we must make decisions we do not like."
The Court suffered an avalanche of criticism. President George H. W. Bush called the ruling "dead wrong." Approximately 65 percent of the public agreed with him. Representative Ron Marlenee, a Montana Republican, declared that the six brave Marines who raised the United States flag over Iwo Jima "were symbolically shot in the back by five men in black robes."
But Kennedy thinks the flag burning opinion, which is still good law, demonstrates the strength of American democracy. "It's a great teaching case. It shows we can disagree strongly with a message, but the First Amendment protects the right of those who are expressing that unhappy message," he says. Kennedy recalls looking out his chambers window after the opinion came out and seeing protesters yelling, "Down with the Court!" Alongside them were "some school children who looked like they were in fifth or sixth grade who had come to visit the Court, maybe 30 of them, nicely dressed. They saw these protesters and they stood on the steps and saluted the flag. It was simply beautiful," Kennedy says with a smile.
Kennedy was widely regarded as the swing vote on the Court, particularly after Justice Sandra Day O'Connor stepped down in 2006. Kennedy insists his judicial philosophy did not change, writing in his book, "it was the cases that swung." His philosophy did not embrace the originalist theory of constitutional interpretation espoused by his conservative colleagues. Kennedy believes the framers left certain concepts general so that the Constitution could adapt to the times. One of them, says Kennedy, is "liberty," which appears only in the Preamble and in the 5th and 14th Amendments, yet is the hook on which he hung his most celebrated opinions.
In the Lawrence v. Texas decision, Kennedy wrote: "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." The framers of the Constitution had no experience with gay marriage, Kennedy acknowledged, yet Obergefell rests on Kennedy's same broad interpretation of the meaning of liberty. "The framers, along with many other things, were modest and they did not presume to know that they knew all of the aspects of liberty," he says. "But they knew that liberty has to have a meaning that does disclose itself over time."
Kennedy thinks there is a place for originalism as it provides a constitutional guardrail. "Originalism has its benefits; [it informs] what the framers would have intended. That is a beginning point," he says. "There have to be some safeguards so that the Court isn't deciding every social issue. We have to look for those restraints."
Law as a Lens Into the Times
Throughout his career Kennedy was an adjunct law professor and frequent lecturer around the world on the rule of law. As such, he compiled a list of "must-reads," ostensibly for his grandchildren, but it is also a useful primer for judges and lawyers. Titled "Understanding Freedom's Heritage: How to Keep and Defend Liberty," the list has been deposited into the U.S. Court of Appeals for the Ninth Circuit library and is available online. It includes works by ancient Greeks and Shakespeare as well as past political giants: Jefferson, Washington, Lincoln. It contains the Preamble to the Constitution and some landmark court decisions and dissents. He's tossed in a few more eclectic selections, including Lou Gehrig's 1939 farewell speech to baseball; Charlie Chaplin's closing speech against fascism at the end of his 1940 film, The Great Dictator; and Tom Cruise's direct examination of Jack Nicholson in A Few Good Men, the 1992 Rob Reiner movie.
Kennedy is a strong supporter of legal education, even if the student has no intention of practicing law. "Law school is a remarkable opportunity for you to understand [the] social and political and moral issues of our time," Kennedy says, although he fears today's astronomical cost of law school may prevent young attorneys from undertaking public interest work. Nonetheless, he thinks people need to encourage graduating law students to choose public service.
"Growing up in Sacramento, [I] knew a fair number of high-ranking state officials, and they were so proud to be public servants and didn't think of it as some sort of entitlement; they thought of it as a mission. We have to restore that idea," he says.
Over the years, Kennedy has mentored nearly 200 law clerks, including two current Supreme Court justices, Neil Gorsuch and Brett Kavanaugh. "I witnessed a gentle man who never raised his voice, who treated every lawyer he saw in the courtroom and person he encountered in the hall as he would wish to be treated, and who afforded the most routine case the same care as the most important," Gorsuch wrote about his clerkship experience in a 2018 tribute to Kennedy in the Harvard Law Review.
Kennedy misses being on the Court. But after half a lifetime in public service (he sat on the Ninth Circuit from 1975 to 1988), Kennedy decided he wanted to spend more time with his family. He also worried that technology was passing him by. "That was one reason it was important for me to leave the bench. I didn't know anything about the cyberage, and I certainly didn't know anything about AI, [but] I knew the world was changing," he says.
An anecdote Kennedy shares offers insight into his character. While still on the bench, he would leave his chambers on nice days to stroll the surrounding Capitol Hill neighborhood, largely unrecognized. One day he bumped into a group of tourists who wanted their picture taken with the majestic Supreme Court building in the background. "Hey Mister," said one to Kennedy. "Would you hold the camera and take our picture?" "Sure," said Kennedy, taking the camera. "No. You have to kneel down," instructed the tourist, who wanted to make sure the shot included the full façade of the building.
"So, I did," says Kennedy. "Thanks, Mister," said the tourists as they walked away, none the wiser as to who their photographer was. "Which I liked," says Kennedy with a laugh.
Diane Kiesel is a retired judge of the New York Supreme Court, an adjunct law professor, and an author.
