By SHERYL GAY STOLBERG for The New York Times
SACRAMENTO — In the fall of 1987, a package arrived on the desk of Laurence H. Tribe, a Harvard law professor who had just lost a Supreme Court case on gay rights. It contained the legal opinions of Anthony M. Kennedy, a strait-laced, conservative Republican jurist from Sacramento who hardly seemed sympathetic to that cause.
The package was sent by one of the most influential men in the California capital then, Gordon Schaber, a law school dean who had enlisted a young Mr. Kennedy to teach night classes and nurtured his career. Now Mr. Schaber was angling for President Ronald Reagan to elevate his friend to the Supreme Court — and he wanted the Harvard professor’s support.
“Gordon Schaber said that Tony Kennedy was entirely comfortable with gay friends,” said Professor Tribe, who later testified to urge the Senate to confirm Justice Kennedy. “He said he never regarded them as inferior in any way or as people who should be ostracized, and I did think that was a good signal of where he was on these matters.”
Now, as the Supreme Court prepares to rule on whether to grant a constitutional right tosame-sex marriage, Justice Kennedy, a onetime altar boy, has emerged as an unlikely gay rights icon. At 78, he has advanced legal equality for gays more than any other American jurist, making his friend Mr. Schaber, who died in 1997 — and who was, many who knew him believe, a closeted gay man — look prescient.
In three landmark opinions, including the 2013 decision overturning a ban on federal benefits for married same-sex couples, he has invoked human dignity with “a sense of empathy and sensitivity that is unusual,” said Prof. Arthur Leonard, an expert on gay rights law at New York Law School. If, as many analysts expect, the court this month does extend same-sex marriage rights nationwide, Justice Kennedy will get much of the credit.
Those who know him well cite a mix of factors in explaining his thinking: his views on privacy and liberty, his belief in marriage as a stabilizing force, his concern for the children of same-sex couples and his custom — in the words of one good friend, Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit — of “stepping into the skin” of those his decisions affect.
“I think it’s been an evolution,” said Judge Kozinski, who served with then-Judge Kennedy on the appeals court. “Maybe what happened is the world around him changed, and the evolution has not been so much in his own thinking, as in the world we live in.”
Justice Kennedy now has a gay clerk, Joshua Matz, who wrote a 2012 law review article with Mr. Tribe titled “The Constitutional Inevitability of Same-Sex Marriage.” A former clerk, Paul T. Cappuccio, who was not openly gay when he worked for the justice in the late 1980s, recently married. When Mr. Cappuccio and his husband became fathers in 2013, Justice Kennedy sent his customary baby gift for clerks: an inscribed pocket Constitution.
And at the McGeorge School of Law campus in Sacramento — where Justice Kennedy taught part time for 23 years and formed a deep intellectual bond with Mr. Schaber as they built the little-known school into a respected institution — an openly gay colleague, Larry Levine, says the justice has helped him get tickets to oral arguments in gay rights cases before the Supreme Court. After each landmark ruling, Mr. Levine said, he has written to Justice Kennedy to say, “both professionally and personally, how meaningful this is.”
It is difficult to know how much, or even whether, such personal interactions influence Justice Kennedy’s jurisprudence. As Mr. Cappuccio, now general counsel of Time Warner Inc., said: “He takes liberty very seriously. Sure, I think it could be natural that one’s life experiences can have an impact. But I think it would be belittling of Justice Kennedy to say he might vote to recognize a constitutional right to same-sex marriage just because he knows people who are gay.”
Still, here in the California capital, where Justice Kennedy grew up and spent most of his time before joining the Supreme Court in 1988, some see the long arc of his past playing a role — both in his decades-long friendship with Mr. Schaber and in the threads of moderation and tolerance woven into his Sacramento roots.
In Warren’s Shadow
This California city during Anthony Kennedy’s childhood in the 1940s and ’50s was not, those who lived here say, an especially partisan or judgmental place. It was dominated by a looming figure: Earl Warren, the Republican governor of California and future chief justice of the United States.
“Sacramento was extremely tolerant,” said Earl Warren Jr., 85, a son of the governor and a retired lawyer. “We had lots of gay people who were very prominent. If you knew or suspected that was the case, it didn’t make any difference. I was a Boy Scout in Sacramento in the 1940s, and we had gay leaders in the community who were also gay scout leaders. They were good friends and good leaders, and there was never any problem.”
In 1941, when Anthony Kennedy was 5, his family settled in Land Park, a neighborhood of curving streets, stately homes and lawns dotted with rhododendrons — a place, said Joe Genshlea, a lifelong friend, “where everybody knew everybody else, and life was just very stable.”
The writer Joan Didion, a good friend of the future justice’s older sister, was a frequent guest in the Kennedy home. The boxer Max Baer — whose son Max Jr. went on to play Jethro on “The Beverly Hillbillies” — lived a few blocks away. The Warren children, who attended the same public high school as the future justice, were often around.
Justice Kennedy’s parents were political and social fixtures in the capital. His father, Anthony, known as Bud, was a Republican lobbyist who represented tobacco interests — a whiskey-drinking, cigar-smoking, “poker-playing, keep-your-cards-to-your vest attorney,” said Dr. David Dozier, a retired neurologist and friend of the justice’s since kindergarten. His mother, Gladys, called Sis, hosted backyard parties for legislators and their wives.
Unlike his backslapping father and lively mother, the future justice was button-down and serious. (To this day, Dr. Dozier says, he has never heard his friend swear.) When he was in the fourth grade, his father arranged for him to work in the capital as a Senate page — a job that allowed him to observe Governor Warren up close.
Today, legal scholars see parallels in Justice Kennedy’s record on gay rights and Chief Justice Warren’s record on civil rights, notably his landmark 1954 Brown v. Board of Education decision desegregating public schools. Lou Cannon, the Reagan biographer and California journalist, says Justice Kennedy told him long before he joined the court that he “thought that Warren was a good chief justice and a good lawyer, as well as being on the right side of history.” Justice Kennedy declined to be interviewed for this article.
The future justice was two years out of Harvard Law School and practicing law in San Francisco when, in 1963, his father died. His mother asked him to move home to take over Bud Kennedy’s law and lobbying business. He settled in Land Park and married Mary Davis, a teacher and Sacramento native, that year.
It was not long before Mr. Schaber paid him a call. A round-faced, bespectacled man who had a limp and wore one corrective shoe (a remnant of childhood polio), Mr. Schaber, born into modest circumstances in North Dakota, had moved to Sacramento as a child. When he became dean at McGeorge, an unaccredited night school above a downtown radio store, in 1957 at age 29, he was the youngest law school dean in the country.
A Democrat, Mr. Schaber — who went on to serve five years as presiding judge of the Sacramento County Superior Court — advised politicians, including governors, of both parties. “He was a must-visit consultant,” said Clark Kelso, a former Kennedy clerk and McGeorge professor, “to anybody who wanted to get elected to anything in Sacramento.”
He was outgoing and erudite. “He loved to eat well, and entertain well,” Mr. Kelso said, and dressed impeccably in tailored shirts. (For years after he joined the court, Justice Kennedy listed a gift of $400 worth of shirts from Mr. Schaber on his financial disclosure forms.)
Photo
The placid Land Park neighborhood in Sacramento, where Justice Kennedy grew up after moving there at age 5 in 1941. CreditMax Whittaker for The New York Times
If politics was Mr. Schaber’s passion, said Glendalee Scully, a retired McGeorge professor, “the law school was his baby,” and he saw in the future justice “a shining star.” When Mr. Schaber reached out, the young lawyer volunteered to teach contracts. Mr. Schaber replied that contracts was taken. “You,” he said, “can teach constitutional law.”
Justice Kennedy relished teaching, and Mr. Schaber became a mentor to him, Mr. Kelso said. The two worked closely as the dean directed the school’s merger with the University of the Pacific and its expansion to a 22-acre campus in Sacramento’s Oak Park neighborhood.
When Mr. Schaber developed a summer program on international law in Salzburg, Austria, the future justice signed on; he still spends a week teaching there each summer, which gives the school, now known as Pacific McGeorge, bragging rights to claim him as its “longest-serving faculty member.” In the school cafeteria, the Anthony M. Kennedy Wall of Judicial Honor features photographs of alumni who became judges. The wood-paneled law library displays a large painting of Justice Kennedy that will one day hang in the Supreme Court.
The two men traveled and often had dinner together, recalled Bernadine Schaber Adams, who was married to Mr. Schaber’s brother, Gary, then the business manager at McGeorge. “They were very close,” she said, adding that the family gave Justice Kennedy a pair of Mr. Schaber’s cuff links after he died. “Gordon knew all the good things about Judge Kennedy. So he went to bat for him.”
In 1967, when Ronald Reagan became California governor, he wanted advice on a tax-cutting ballot initiative; Mr. Schaber recommended Mr. Kennedy. His work led Reagan to propose that President Gerald R. Ford appoint him to the federal appeals court. It led, as well, to a close friendship with Edwin Meese III, the Reagan adviser, who as attorney general under Reagan was instrumental in Justice Kennedy’s appointment to the Supreme Court.
If Mr. Schaber was indeed gay — as nearly a dozen people here who knew him, including law school colleagues and Mrs. Schaber Adams, say they suspect — he took pains to conceal it. He had at least one female companion, a judge who died in 1990. In gay circles, there were whispers about his sexuality. But in polite Sacramento society, people did not discuss it. Nor did he.
“He had been trained to maintain his decorum, I guess you would call it,” Mrs. Schaber Adams said. But of Justice Kennedy, she said, “I think he knew.”
Shift After Early Rulings
In his earliest rulings as a member of the appeals court, which he joined in 1975, Judge Kennedy did not demonstrate himself to be the friend of gay rights that Mr. Schaber later envisioned.
In 1976, he supported the firing of a federal employee for “homosexual conduct.” In 1980, he affirmed the right of the Navy to dismiss gay sailors. In 1982, he upheld the deportation of an Australian man who was in a same-sex relationship with an American.
But the 1980 case, Beller v. Middendorf, contained an important caveat. In dense legal language, Judge Kennedy noted “substantial academic comment which argues that the choice to engage in homosexual conduct is a personal decision entitled, at least in some instances, to recognition as a fundamental right and to full protection as an aspect of the individual’s right to privacy.”
The language surprised Judge Stephen Reinhardt, a Ninth Circuit liberal who joined the court that year. “I always thought of Tony as someone who never really got out of Sacramento, who was very provincial,” Judge Reinhardt said. “He was a very traditional, straight person, very moralistic.”
Sometime in the 1980s, a gay couple moved a few doors down from the Kennedys in Land Park; Mr. Genshlea recalls their arrival as “not a big deal.” Judge Kennedy took Mr. Meese and his wife to a housewarming party at the male couple’s home, according to a 1987 article in The Los Angeles Times, which quoted a friend expressing the future justice’s attitude: “If they can tolerate me, I can sure tolerate them.”
When Justice Lewis Powell announced his retirement from the court in 1987, many in Sacramento thought Judge Kennedy was the obvious pick. Instead, Reagan nominated another federal appeals court judge, Robert H. Bork, an ultraconservative who was rejected by the Senate. A second candidate, Judge Douglas H. Ginsburg, withdrew amid controversy over past marijuana use. Judge Kennedy, viewed as conservative yet more likely than Judge Bork to win bipartisan support, was the third choice.
Mr. Meese, in an interview, said legal equality for gays was not discussed as an issue in the Kennedy evaluation. “That subject never came up,” Mr. Meese said, “and there was nothing in his background one way or another.”
When the Bork nomination imploded, Mr. Schaber and Professor Tribe — who had met then-Judge Kennedy while receiving an honorary doctorate from McGeorge — began talking. The previous year, Mr. Tribe had tried to persuade the Supreme Court to declare Georgia’s ban on sodomy unconstitutional. He lost that case, Bowers v. Hardwick, 5 to 4.
But even before Mr. Schaber sent the Kennedy opinions, Mr. Tribe had been reading them and concluded that the jurist “wouldn’t hesitate to overturn” Bowers. “I called Schaber, and I said, ‘I think this guy is terrific,’” Mr. Tribe said. “And Schaber said, ‘Why don’t you testify for him?’ And I said, ‘I will.’ And Schaber said, ‘That might make the difference.’ ”
Not everyone was so convinced; Professor Leonard, the gay rights expert at New York Law School, viewed then-Judge Kennedy as a “likely vote against us.” In the end, Mr. Tribe and Mr. Schaber were correct, though Mr. Schaber did not live to see it.
As the swing vote on a deeply divided court, Justice Kennedy typically sides with conservatives on issues like affirmative action and campaign finance, but with liberals on issues like the death penalty and gay rights. In 2003, in the case of Lawrence v. Texas, he wrote the opinion striking down Texas’s anti-sodomy law — and issued a rare apology from the Supreme Court. “Bowers was not correct when it was decided,” he wrote, “and it is not correct today.”
Today, advocates of same-sex marriage predict Justice Kennedy will take the next big step, by ruling it is protected under the Constitution. But Mr. Cappuccio, the former clerk, warns that “it would be a mistake to take Justice Kennedy’s vote in the same-sex marriage case for granted, because he also has a lifetime of experience as a judge who takes seriously the limited role of the federal courts.”
Here in Sacramento, where the county courthouse is now named in Mr. Schaber’s honor, those who knew him cannot help but wonder if the justice is thinking about his old friend. Shortly after Mr. Schaber died in November 1997, more than 750 dignitaries, judges and lawyers gathered in a downtown Sacramento auditorium to honor him on what would have been his 70th birthday. President Bill Clinton sent a letter; Robert Matsui, the Democratic congressman, spoke.
But all eyes were on Justice Kennedy, the American Bar Association newsletter reported, as he delivered the eulogy, with Mr. Schaber’s familiar round face displayed on a giant videoscreen.
He recalled Mr. Schaber’s record of helping others: “the student who needed financial aid,” or “the professional whose career was on the brink of ruin and just needed a second chance.”
And he talked of Mr. Schaber’s commitment “to a law that seeks compassion, to a law that seeks justice.” As he spoke, Justice Kennedy “paused to look up at Schaber’s face on the screen,” the newsletter said, “as if to seek approval from his longtime friend.”