The Nine [99]
O’Connor, in contrast, never treasured her role in the decision. She valued her place as the Court’s moderate center, and her association with a decision regarded by many as a partisan outrage made her queasy. Like Scalia, O’Connor would rarely defend the decision on its merits. With a nervous, revealing intensity, she would cite the results of the recounts conducted by the news media as supposed proof that Bush v. Gore had not mattered as much as its critics claimed. O’Connor did not voice regret for her vote—such soul-searching was definitely not part of the O’Connor style—but neither did she enjoy the memory of the case.
Of the five justices in the majority, Kennedy had the hardest time with the aftermath of Bush v. Gore. He had spent most of his adult life as a judge, and he had a special reverence for the profession, “the guild of judges,” as he sometimes called it. There would be, it turned out, two Anthony Kennedys on the Supreme Court—the one before December 12, 2000, and the one after—and his transformation was surely one of the most unexpected legacies of this epochal case.
The Justice Kennedy of the post–Bush v. Gore era was shaped by one influence in particular—his exposure to foreign law and foreign judges. After 2000, in part to escape the political atmosphere in Washington, Kennedy deepened his commitment to the broader world, and his journeys changed him. Given Kennedy’s pivotal role, the Court and the nation would never be the same. The paradox of Bush v. Gore is that the justices’ gift of the presidency to a conservative sent the Court in its most liberal direction in years.
On the surface, few justices in recent history arrived at the Supreme Court from a more provincial background than Kennedy. When President Reagan nominated him to the Supreme Court in 1987, Kennedy was fifty-one and still lived in the house where he grew up in Sacramento.
But that picture of Anthony Kennedy—of a provincial lawyer tethered to the same small city for his entire life—was misleading. Kennedy’s inclinations were hardly those of an insular man. While he was a teenager, his uncle, an oil driller, hired him to work summers on rigs in Canada and Louisiana. Before he graduated from college, Kennedy spent several months studying at the London School of Economics, where he reveled in the range of student opinion and the vehemence of political debate. As a young lawyer, even though his firm in the California capital was small, he developed a robust international practice. Kennedy traveled to Mexico so often on business that he became one of a handful of American lawyers to obtain a license to practice there, where he helped a client establish one of the first maquiladoras—American-owned factories.
Kennedy’s father had been a legendary lobbyist in Sacramento, best known for his rousing advocacy (and entertaining) on behalf of the California liquor industry, among others. Tony Kennedy hung on to the client for his firm, but he cultivated a very different persona around Sacramento—that of a professor rather than a glad-hander. In 1965, when he was only twenty-nine and a few years out of law school himself, Kennedy began teaching constitutional law at McGeorge, the local law school. Kennedy’s idea of himself as a teacher, and of law as a transmitter of society’s values, was central to his identity.
Kennedy was not even forty years old when Gerald Ford appointed him to the Ninth Circuit. The job of an appeals court judge can be stultifying, especially for a young man, because the principal duties are so sedentary—reading briefs, hearing arguments, and writing opinions. But Kennedy made something more of it, when