One of the saddest Supreme Court opinions I have ever read is Justice Anthony Kennedy’s three-paragraph concurrence in Trump v. Hawaii (2018), explaining his vote to uphold President Donald Trump’s travel ban, which blocked people from eight countries, most of them predominantly Muslim, from entering the United States.

The Court had rejected two earlier versions of the travel ban. This time Chief Justice John Roberts concluded in his majority opinion that there was “a sufficient national security justification” for the policy, while Justice Sonia Sotomayor’s dissenting opinion accused the majority of “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering” that would result. With four justices on each side, the outcome turned, as had so often been the case during his thirty-year tenure, on Kennedy. Referring to “the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs,” he gave his vote to Roberts.

Yet it was painfully obvious from Kennedy’s apologetic tone that he understood the damage the policy would cause to the country’s standing in the world. His final sentence read as a plea both urgent and—given the decision—self-contradictory: “An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”

In other words, he knew better. This was the justice who ten years earlier had insisted that those imprisoned as enemy combatants at Guantánamo Bay had a constitutional right to a judicial hearing on “both the cause for detention and the Executive’s power to detain.” His majority opinion in that case, Boumediene v. Bush (2008), was no exercise in judicial deference to the other branches of the federal government. Rather, it was a dramatic repudiation of the open-ended detention regime that the White House had devised and that Congress had enabled.

Still, when it came to the travel ban, I believe that Kennedy did the best he could. On that day in June 2018, a month short of his eighty-second birthday, he was tired. He announced his retirement the next day.

A very different Kennedy opinion is among the most uplifting I have ever read. It was his declaration for a 5–4 majority in Obergefell v. Hodges (2015) that the Constitution conveys a right for same-sex couples to marry. In Bowers v. Hardwick (1986), before his appointment to the Court, a majority had dismissed as, “at best, facetious” the claim that the Constitution protects consensual gay sex acts from criminal prosecution. How had the Constitution become so capacious? The answer lay in no small measure in Kennedy’s own opinions in a trio of gay rights cases that made the marriage decision all but inevitable. In language already familiar from those earlier decisions, he explained in Obergefell:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

It would be satisfying to position these two opinions as bookends bracketing Kennedy’s career. But that isn’t the case: a mere three years separated Obergefell and the travel ban ruling. That Kennedy could speak in such different registers in two cases with shared implications for individual rights illustrates what confounded many observers of the Court during his long tenure. It wasn’t only that he could be hard to predict but that in his very unpredictability he wielded such enormous power over the Constitution’s contemporary meaning. In his final term, Kennedy was in the majority of fifteen of the seventeen cases that were decided by votes of 5–4. “It’s Justice Kennedy’s world, and we’re just living in it” was a popular saying around Washington during his last dozen years on the bench.

How that world looked to Kennedy himself is the subject of his surprisingly revealing new memoir, Life, Law and Liberty. Supreme Court memoirs typically tell coming-of-age stories that end, at the latest, at the Court’s front door—for example, Clarence Thomas’s My Grandfather’s Son (2007), Sonia Sotomayor’s My Beloved World (2013), and Ketanji Brown Jackson’s Lovely One (2024). Amy Coney Barrett’s Listening to the Law (2025) is more civics textbook than memoir, offering only a few random anecdotes about her life before and since joining the Court.

Of course we don’t expect sitting justices to dish about life on the Court. Nor do we expect retired justices to be similarly constrained. John Paul Stevens wrote several books after his retirement in 2010, the last of which was The Making of a Justice: Reflections on My First 94 Years, a memoir published shortly before his death in 2019 at age ninety-nine. Weighing in at 560 pages, the book methodically inventories decisions from each of his terms—without, in the end, giving the reader much insight into what he made of it all.¹

Kennedy’s Life, Law and Liberty is different. In it he recounts the decisions he made on the Court through a distinctly personal lens, including his struggles and second thoughts. In 1992, when the question of whether to preserve the right to abortion reached the Court in Planned Parenthood v. Casey, so acute was his internal conflict between his religious belief that abortion was a “moral wrong” and his legal view of what the Constitution required that he considered resigning. He ultimately cast one of the five votes to retain the basic holding of Roe v. Wade. As soon as the decision was announced, he placed an apologetic phone call to his twenty-three-year-old daughter, Kristin, hoping to catch her before she heard the news. While the decision failed to “match our personal hopes and dreams and beliefs,” he explained to her, it had been his “duty and oath to honor the rule of law.”

Readers will undoubtedly be left wondering how Kennedy would have voted in Dobbs v. Jackson Women’s Health Organization (2022), which overturned both Roe and Casey. He does not mention Dobbs, but my guess is that,given how rare it is for a justice to disavow an earlier vote, he would have struggled mightily yet in the end voted to retain the right to abortion.

Or maybe not. Elsewhere he describes having a change of heart on the question of whether the Eighth Amendment’s prohibition of cruel and unusual punishment bars the execution of those convicted of committing murder before the age of eighteen. In 1989, when the question first arose in Stanford v. Kentucky, Kennedy joined Justice Antonin Scalia’s conclusion for the majority that capital punishment for juveniles was constitutionally permissible. But when the issue returned to the Court in Roper v. Simmons (2005), Kennedy wrote the majority opinion for the opposite outcome.

In Life, Law and Liberty, he writes that while it was possible to extract some differences, “the facts in both cases and the arguments for and against executing a minor were so similar that it might be said that, at the end of the day, my first vote was simply wrong.” The decision in the second case, like the first, was 5–4, and Scalia’s dissenting opinion was biting. “By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?” he demanded.

Kennedy and Scalia overlapped on the Court for twenty-eight years. On paper, they had a good deal in common: they were born within months of each other to devout Catholic families with strong appreciation for their immigrant roots, and they both attended Harvard Law School. (In 1958, about a week after arriving in Cambridge, Kennedy was introduced to a Beacon Hill doyenne who reassured him, “Now, Anthony, you can feel welcome in Boston. We are beginning to accept the Irish.”) Both were elevated to the Supreme Court by President Ronald Reagan. But when it came to reading the Constitution, they were far apart.

Scalia’s scathing dissent in Obergefell, in which he denounced Kennedy’s opinion in support of same-sex marriage as “pretentious,” “egotistic,” and full of “showy profundities,” marked a rupture in what had been, from Kennedy’s perspective, a carefully tended civility. In a footnote that quickly went viral, Scalia wrote that “I would hide my head in a bag” before signing an opinion that resembled the “mystical aphorisms of the fortune cookie.”

Kennedy had shrugged off Scalia’s biting tongue for years. What stung this time was Scalia’s drive-by attack on California, Kennedy’s cherished home state. Scalia complained that the Court that decided Obergefell could not even purport to represent the country: eight of the nine justices (including himself) came from the East or West Coasts, without “a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count).” This oddly gratuitous comment amounted to a challenge to the Sacramento-born Kennedy’s deeply held view of himself as an authentic westerner. His family, understanding this, was “devastated” by the dissent.

But Kennedy, now approaching ninety, is not using his memoir to settle scores. Quite the opposite: although he describes Scalia as “more rigid than most of us,” his attitude toward his sometime adversary is one of compassion. He writes that in the months before and after the Obergefell decision, he and the other justices noticed a change in Scalia. He seemed “restive, perhaps even unhappy at the Court,” rarely joining the justices’ daily lunches or stopping by others’ chambers to chat.

Then, in February 2016, Scalia came to see Kennedy to apologize for the tone of his Obergefell dissent. There followed a “reconciliation conversation,” in Kennedy’s words. “Neither of us was big on hugging, but we hugged, both of us smiling.” Scalia was about to leave for “my last long trip,” he told Kennedy, a hunting trip to Texas. It was on that trip that he died. Maureen Scalia later told Kennedy that when her husband came home for dinner after that last conversation, he was happier than he had been in months.

Kennedy is clearly proud of Obergefell, and hedescribes the “great satisfaction and reassurance” he feels when people tell him that they quoted lines from his opinion at their weddings. For him the case was at least as much about the institution of marriage itself as it was about access to marriage by same-sex couples:

A primary objective in the Obergefell opinion was not to dilute the meaning and significance of marriage by adopting the tone of: “Oh, we might as well allow same-sex marriage, since it does not hurt conventional marriages.” Instead, the opinion sought to elevate both heterosexual and same-sex marriages as an institution, reaffirming the respect and love which all of us seek.

That Kennedy would decide Obergefell as he did was almost a foregone conclusion by the time the case reached the Court. But the part he would come to play in anchoring gay rights firmly in the Constitution had not been widely anticipated when he wrote the majority opinion in Lawrence v. Texas (2003), which overturned the notorious Bowers v. Hardwick. People who hadn’t been paying much attention wondered where the Kennedy of Lawrence v. Texas came from. Was there a backstory? Did he have a gay child? (In fact, no.)

At that point I was covering the Court for The New York Times, and I was less surprised than many, remembering Kennedy’s majority opinion in Romer v. Evans (1996). That decision struck down a provision that Colorado voters had added to the state’s constitution to prohibit laws that protected the gay community from discrimination. The Court held that the provision violated the federal Constitution’s guarantee of equal protection. “A state cannot so deem a class of persons a stranger to its laws,” Kennedy wrote. Given that Bowers v. Hardwick was still on the books at the time, it was an eye-opening decision that contained a hint of change to come.

But neither Romer nor Lawrence answered the question of where Kennedy’s solicitude for LGBTQ individuals came from. Someone in the office suggested that I call Joan Didion, who had grown up with Kennedy in Sacramento. She turned out to be happy to talk about Tony, the younger brother of her best friend in high school. Kennedy’s father had a law practice that involved lobbying the California legislature, and he kept the house open to a constant flow of people and ideas. “There was a world outside their personal world that came into that house,” Didion recalled, adding that Kennedy’s college friends at Stanford were surprised when he left to spend part of his senior year at the London School of Economics. No one in Sacramento knew anyone who had done something so exotic. “He wanted to live in a wider world,” she explained.

How to disentangle the personal and the jurisprudential? Kennedy offers some hints, not about homosexuality but about the impact of an early encounter with the toxic price of prejudice. At the age of five, he had a friend named Naoki, a Japanese American boy whose treasured possession was a samurai doll that was kept locked in a tall glass case. The case was not to be opened, so the two little boys played with the doll by building things around it. One day in the summer of 1942, not long before his sixth birthday, the doorbell rang at Kennedy’s house:

It was Naoki, holding the case with the doll. He gave it to me, cried and hugged me, then ran to the waiting car. He was being sent to an internment camp. We never saw or heard from him again.

Nor is it precisely clear where Kennedy got his approach to interpreting the Constitution. It’s important to note that the belief that constitutional meaning changes over time in dialogue with a changing society was entirely conventional before “originalism” appeared on the scene in the last quarter of the twentieth century—a theory invented to serve as a seemingly neutral cover for attacking the legacy of the New Deal and the Warren Court. Kennedy’s statement during his Senate confirmation hearing in 1987 that the Constitution’s framers “made a covenant with the future” was anything but revolutionary. The Supreme Court seat was still open because the Senate had months earlier rejected Reagan’s nomination of an unyielding originalist, Robert Bork. In his confirmation testimony, Bork had alarmed the public and a bipartisan majority of the Senate by dismissing as illegitimate such concepts as a constitutional right to privacy. Against that background, Kennedy’s more expansive constitutional vision was reassuring. He was confirmed by a vote of 97–0.

Kennedy’s conviction that the Constitution’s text serves as a necessary but insufficient “beginning point” is a major theme of the book. Reflecting on how to interpret the word “liberty” in the Fifth and Fourteenth Amendments, for example, he writes that the framers “were cautious enough, indeed modest enough, to know that the meaning of a word can unfold over time.” And he adds with unmistakable asperity, “They did not choose these terms after sitting around reading dictionaries”—dictionaries being an originalist’s go-to source for constitutional meaning.

The distance between Kennedy and today’s Supreme Court jumps out from passages like those. Is it reading too much into his assertion that “the court must strive to let the public know there are principled reasons for its rulings” to see a reference to the current majority’s use of the “shadow docket” to issue orders that have permitted the dismemberment of entire federal agencies without any written explanation? Are his former colleagues the audience he has in mind when he notes that “a fundamental part of the task of being a justice” is to “write so that the parties in the case can understand and be persuaded that we reached our decision in a proper way”? His observation that “that is how we maintain respect for and commitment to the rule of law” hangs in the air.

Life, Law and Liberty is far from a complete account of its author’s Supreme Court tenure. One notable omission is an important ruling about race and public schools, Parents Involved in Community Schools v. Seattle School District No. 1 (2007). School districts in Louisville and Seattle had adopted policies designed to stave off the resegregation that often results from segregated neighborhoods: students, whether Black or white, would be allowed to choose or change schools only if their arrival would not alter the existing racial balance.

Federal appellate courts had upheld both districts’ plans, but the Supreme Court declared them unconstitutional. Classifying students by race in this way violated the Fourteenth Amendment’s Equal Protection Clause, Chief Justice Roberts wrote, and maintaining racial diversity was not a “compelling interest” sufficient to justify race-conscious measures. Kennedy voted to strike down the plans but refused to sign Roberts’s opinion, leaving the chief justice to speak for only four justices—a plurality opinion of diminished precedential weight rather than a majority opinion.

This was an unexpected, even startling development. Ever since joining the Court, Kennedy had been highly critical of race-conscious government policies. He had dissented from Justice Sandra Day O’Connor’s majority opinion in Grutter v. Bollinger (2003),which contained the expectation that the Court would uphold affirmative action in university admissions for the next twenty-five years. (The Court rushed that deadline, if that’s what it was, in 2023 in Students for Fair Admissions v. Harvard when it declared affirmative action unconstitutional.) In Parents Involved, Kennedy actually agreed with Roberts that the plans at issue violated the guarantee of equal protection. His objection, as he explained in a “concurr[ence] in the judgment,” was to Roberts’s “all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account,” albeit in different ways.

Kennedy appeared particularly offended by the line in Roberts’s opinion that has since become famous: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That assertion was “not sufficient to decide these cases,” Kennedy wrote. “Fifty years of experience since Brown v. Board of Education…should teach us that the problem before us defies so easy a solution.” Diversity was in fact “a compelling educational goal a school district may pursue,” in Kennedy’s view. “To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools,” he wrote, “it is, in my view, profoundly mistaken.”²

The constitutional problem with the Louisville and Seattle assignment plans, for Kennedy, was that they led to “different treatment based on a classification that tells each student he or she is to be defined by race.” Approaches that took account of race “in a general way” without depending on individual classification would be constitutionally acceptable, he wrote, offering as examples “drawing attendance zones with general recognition of the demographics of neighborhoods,” site selection for new schools, “allocating resources for special programs,” and “recruiting students and faculty in a targeted fashion.” (Of course, whether today’s Supreme Court majority would accept any of these measures is very much an open question.)

Kennedy’s failure even to mention Parents Involved in his memoir is baffling, and not just because his opinion was so revealing of his views on race and the law. Roberts was then in only his second term as chief justice, and Parents Involved was the most important case he had faced so far. Kennedy, twenty years Roberts’s senior, had been on the Court for nineteen years. Withholding his vote from the new chief justice, along with characterizing Roberts’s opinion as simplistic, was no casual matter. What went through his mind? Was there a lesson he was trying to deliver to a junior colleague, a marker he was laying down for the battles to come?

Life, Law and Liberty steers clear of all the race cases the Court decided during Kennedy’s tenure, including major decisions on voting rights and redistricting. He also doesn’t mention his dissenting opinion in Grutter, nor does he discuss his majority opinion in Fisher v. University of Texas (2016), which over the dissenting votes of Roberts, Thomas, and Justice Samuel Alito upheld a partially race-conscious admission plan. Maybe the subject of race just felt too topical. How would he have voted in the Harvard affirmative action case? We’re left to wonder.

He shows no such reticence on another fraught topic, religion, devoting a chapter to his five majority opinions that dealt with the First Amendment’s Free Exercise and Establishment Clauses. One of those cases was Lee v. Weisman (1992), which held, in a 5–4 decision, that clergy-led prayer at public school graduation ceremonies violates the Establishment Clause. Kennedy describes the case but omits the most interesting part of its history: he had initially accepted the assignment to write the majority opinion for upholding the prayer, but he ended up changing his mind. After working for months on a draft, he became convinced that the dissenters had the better argument. His own “looked quite wrong,” he told the senior justice in dissent, Harry Blackmun. Rejecting Kennedy’s offer to turn the case over to him, Blackmun told Kennedy to keep the case and produce a new draft.

This episode was unknown until Blackmun’s papers were opened to the public at the Library of Congress in 2004. It would have fit nicely with another theme that runs throughout Kennedy’s book: the need for judges to keep an open mind. “Judges must reflect upon their own reasoning and past choices,” he writes in one of several such passages. “Experience and learning are not blameworthy. They are a frequent, necessary, intriguing part of life.”

Aside from Obergefell, Kennedy’s most important opinion was undoubtedly Citizens United v. Federal Election Commission (2010), the 5–4 decision that allowed unlimited corporate spending on politics. Its rationale was that the restrictions Congress had set on corporate campaign expenditures violated the First Amendment’s protection of free speech. Readers expecting an apologia from Kennedy will be disappointed. But I do detect some defensiveness in the way he frames the issue the case presented:

We are not policymakers; we are jurists. Of course, all of us are concerned with money in politics. But our role was to rule on the constitutionality of a specific piece of legislation passed by the Congress. The government of the United States in this case argued before the Supreme Court that if there was an upcoming political campaign and a book was being published, or a movie was being produced, and it was critical of a candidate, then it could stop publication if funded by a corporation. One can believe that there is a problem with money in politics but also decide that this law was not a constitutionally permissible way to address it.

I found no similar hint of defensiveness in Kennedy’s description of Bush v. Gore, the case that decided the 2000 presidential election. We learn that he was the author of the unsigned opinion that found an equal protection violation in the recount that was in progress under an order from the Florida Supreme Court. With George W. Bush ahead by a few hundred votes, the five-justice majority stopped the recount. O’Connor, one of the five, later expressed regret about the case. “Maybe the Court should have said, ‘We’re not going to take it, goodbye,’” she told the Chicago Tribune in 2013.

Not so for Kennedy. He stands by his opinion’s claim that it was the Court’s “unsought responsibility” to accept a case in which “contending parties invoke the process of the courts.” That was an odd statement then and remains so today, given that the Court turns down all but sixty or seventy of the thousands of cases that “contending parties” bring to it each term. In any event, Kennedy has no regrets: “It was my firm conviction that the Court had decided the case in a fair and neutral way.”

Before O’Connor retired in 2006, Kennedy was more often than not to be found on the conservative side of the closely divided Court. It was O’Connor who was deemed the “swing justice” of what was often called the O’Connor Court. After she left, and for the remaining twelve years of his tenure, that label fell to Kennedy. He bridles at it. “The cases swung, not me,” he writes.

His dislike of a term that might be seen to connote an unserious lightweight is understandable. Yet it also indicates something important not about Kennedy but about the Court in his time. That time has passed, and the implications of its passing are drawing the attention of scholars of the Court.

In a recent article in the Harvard Law Review, the law professor Richard M. Re identifies 1974–2020—a period between two supermajorities—as the “Swing Justice Era.”³ Before it was the hyperliberal Warren Court, which officially ended with Chief Justice Earl Warren’s retirement in 1969 but held sway in significant ways for another half-decade. (Roe v. Wade was decided in 1973 by a 7–2 majority that included Chief Justice Warren Burger.) After it is the current Court with its conservative supermajority, which coalesced in 2020 with the death of Justice Ruth Bader Ginsburg and her replacement by Barrett.

During the years in between, a series of three justices, Lewis Powell, O’Connor, and Kennedy—all of whom happened to be Republican appointees, although Powell was a southern Democrat—occupied the Court’s ideological center and, as Re puts it, “held the key to major victories.” It was good for the Court, he writes: “Judicial outcomes seemed driven by something other than partisan politics, and a nonideological mode of legal argument seemed to exist and matter.” The Court “garnered legitimacy from its unpredictability and evenhandedness across political groups.”

That the Swing Justice Era occurred when it did was no accident. At the time, both political parties encompassed an ideological spectrum, with convergence in a moderate middle. In 1987 six Republican senators joined fifty-two Democrats in voting against Robert Bork’s Supreme Court nomination; the previous year, Scalia had been confirmed unanimously. Two Republican appointees, first Harry Blackmun and then John Paul Stevens, were the Court’s most liberal members when they retired in 1994 and 2010. Lacking a solid ideological majority, the Court in this era could put together five votes only through some measure of compromise.

In another recent article, which appeared in the William and Mary Law Review, the law professor Neal Devins chronicles the Court’s trajectory on affirmative action in education, beginning with Powell’s opinion in Regents of the University of California v. Bakke (1978), which controlled the outcome of the case.⁴ That opinion ruled out admissions quotas but endorsed the goal of “diversity,” satisfying neither side but preserving race-conscious university admissions for the next forty-four years. During those decades, Devins maintains, the Court “embraced a middle ground—making use of ever-changing, indeterminate, fact-dependent standards” to reach decisions that reflected “larger social and political cross-currents.” But the recent Harvard affirmative action case “reflected another reality,” he writes, “namely, that there were no moderates on the Court, and today’s Justices would not seek a middle ground.” Compromise can buy time, but time eventually runs out.