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It was Schaber's ambition to build McGeorge from a night school into an internationally respected institution. This he accomplished, with Kennedy's help, and in the process he made Kennedy a close friend. Somehow, without a word spoken on the subject, Kennedy came to understand that this friend was living the difficult secret life of a gay man in 1970s America. "I don't see how it could not have some impact" on Kennedy's later rulings in favor of gay rights, says current McGeorge professor J. Clark Kelso, a former Kennedy clerk. Kennedy tries to reconcile the past with the future, says Didion, "while at the same time being fully aware that it's a hard accommodation to make. And he knows that everything is not going to dovetail exactly."
In 1980, Kennedy's sister died of cancer; his mom followed the next year from heart failure. Then soon after, his brother Tim drowned in a surfing accident. In a blur of grief, at 45, Kennedy found himself the lone survivor from that bustling hive on East Lincoln. Rather than sell the place and efface its memories, he moved back into the house where he grew up. And it was there that he was living when he got the call from Ronald Reagan's White House in 1987 to be on the Supreme Court.
The Arbiter
Kennedy was an accidental Justice, Reagan's third choice after the controversial Robert Bork was blocked by Senate Democrats and Douglas Ginsburg, an appeals-court judge, withdrew his nomination in a kerfuffle over past marijuana use. Kennedy had been a cautious judge on the Ninth Circuit, hewing closely to established doctrine. Cannon recalls meeting Kennedy at a party around the time of his nomination. Remarking on the Bork fireworks, Cannon said he had been struck by the nominee's candor under questioning by hostile Senators. Kennedy's reply demonstrated precisely why the rattled Administration had turned to him. "Sometimes," he said smoothly, "you can be a little too candid." Those were the words of a man headed to a quick and unanimous confirmation.
Kennedy's background and demeanor suggested that he would not be much of a change from the man he replaced, the center-right lawyer from Richmond, Va., Lewis Powell. Broadly speaking, though, Kennedy has been more conservative than Powell, making him part of a strong rightward shift in the court that began with Richard Nixon, resumed with Reagan and continued under the Bushes. In his early years, Kennedy voted most often with the rock-ribbed Chief Justice William Rehnquist. But Kennedy's conservatism is a different species from the better-defined doctrines of Justices on the right like Antonin Scalia and Samuel Alito. Their search for the fixed and permanent meanings of the Constitution calls to mind the late William F. Buckley's notion of conservatives "stand[ing] athwart history, yelling 'Stop.'" Kennedy, by contrast, has proved to be a cautious conservative who nonetheless believes that history moves forward and the Constitution must move with it. These two ideals--of preserving what is best about the past while making way for the future--frame many of the controversies that have come to define Kennedy's career as the least predictable member of the current court.