A Change in Climate

Supreme Court of the United States

On June 27, as I board a plane in Sacramento for a long overdue reunion with some of my favorite Hoosier jurists after my first six weeks advocating in California, Sacramento’s most visible jurist, United States Supreme Court Justice Anthony Kennedy, announced his intention to retire, ending a 30-year tenure with the Supreme Court and a 43-year tenure on the federal bench. While most of the major news headlines focused on his eventual replacement on the bench, my thoughts turned to Justice Kennedy’s early career in Sacramento and how he shaped both California and federal law, both as a lobbyist and judge.

Anthony McLeod Kennedy was born in Sacramento on July 23, 1936, the middle child of Anthony J. Kennedy, a lobbyist and lawyer in Sacramento and Gladys (McLeod) Kennedy, a regular in local civic work. The future justice attended Stanford, his mother’s alma mater, before graduating from Harvard Law School in 1961, followed by service in the California Army National Guard from 1961-1962. Kennedy married Mary (Davis) Kennedy in 1963, and the couple had three children. After the sudden death of his father in 1975, Justice Kennedy returned to Sacramento to take over his father’s law practice. In private practice, Justice Kennedy was actively engaged with the California legislature and was an adjunct professor at the McGeorge School of Law in Sacramento, mentoring and teaching many future California lawyer-lobbyists.

Upon the recommendation of then-California governor Ronald Reagan, President Gerald Ford appointed Anthony Kennedy to the Ninth Circuit Court of Appeals in 1975, making him the youngest federal appellate court judge at the tender age of 38 (which makes this 36-year old feel quite inadequate!). In 1987, President Reagan nominated Kennedy to the Supreme Court after retirement of Justice Lewis Powell. Kennedy’s nomination followed several contentious and failed confirmation hearings. Unlike his predecessor nominees, Kennedy flew through the confirmation process, with the Senate confirming his nomination in early 1988 by a vote of 97 to 0.

In his tenure with the Supreme Court, Justice Kennedy authored over two hundred opinions and was known for his careful, case-by-case approach to the law. (Many thanks to the Oyez project, a collaboration between Cornell’s legal institute, Chicago-Kent School of Law, and justicia.com for their useful compilation of opinions). The Justice often used foreign and international law as a tool for interpretation, and did not reliably fall along traditional conservative or liberal lines. Along with Associate Justice Sandra Day O’Connor, who retired in 2005, Justice Kennedy was often near the ideological center of the Court. In his recent years, he was the deciding swing vote in many controversial and high-profile cases impacting much of our day to day life in California and across the country.

For example, Kennedy was the deciding swing vote in a 5-4 decision that altered the legal landscape of climate regulation, and daily affects the work we do here in California. In 1999, the federal Environmental Protection Agency (EPA) under President Bill Clinton interpreted the Clean Air Act (CAA) as only applying to local air pollutants, not greenhouse gases (GHGs). EPA thus declined to promulgate administrative rules to regulate GHG emissions from new motor vehicles. Reasoning that EPA was charged with protecting the States from unlawful emissions, California and eleven other states formally petitioned the EPA for rulemaking. After EPA opined that it lacked jurisdiction, the States appealed to the federal courts to decide whether the EPA had authority to regulate carbon dioxide emissions from new vehicles, and whether its failure to do so was an abdication of EPA’s responsibilities under the CAA. Key to this decision was the CAA’s definition of “air pollutants,” defined as any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air . . . .” Ultimately, the Court decided that regulation of greenhouse gas emissions from vehicles was within the very broad definition of air pollutants. It ruled that once “EPA makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the deleterious pollutant from new motor vehicles.” This close decision has and continues to have wide-ranging effects. Not only for its decision, but because of the confusing dichotomy between how we regulate local air pollutants—those we typically associate with smog and local air quality issues—and atmospheric pollutants (GHGs)—typically associated with global climate change issues. Although both are currently regulated under the Massachusetts v. EPA decision, it is important to keep in mind that the regulation and solutions for local air pollutants versus atmospheric pollutants are very different, and should not be conflated. The difference between local air pollutants and atmospheric pollutants continues to be a confusing point for many at the state and federal level. It remains to be seen whether a challenge will be brought to this split decision after Justice Kennedy’s retirement.

Justice Kennedy’s focus lent a unique view to the debates and opinions of the Court, and appear to be informed by his years working with the California legislature. The Justice once wrote that “[t]he idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.” Justice Kennedy’s opinions are typified by this reasoned, careful and evolving consideration. Throughout his tenure, Kennedy surprised both supporters and opposition with his case-by-case approach, consistent with his consensus-building past as a California lobbyist.

Whatever your political ideology may be, it is hard to dispute that Justice Kennedy has made, and will continue to make, a lasting impact on federal court jurisprudence and its interaction with state law. My selfish hope is that the Justice spends a little more time in Sacramento, perhaps picking up again a few classes in town at McGeorge School of Law. Wherever he may land, from one of Sacramento’s newest jurists, to its most established, I say congratulations on your retirement, and welcome home.


Leah B. Silverthorn, Policy Advocate