Justice Kennedy has absorbed at least one of the less pleasing tricks of a Supreme Court Justice's trade. It is common for a dissenter to chastise the majority when the majority decides an issue not strictly necessary for resolution of a case before the Court. But this righteous indignation is usually reserved for cases in which the Justice disagrees with the majority's resolution of the merits of the case. When the Justice is in the majority, such prudential considerations are given less weight.
In Missouri v. Jenkins, Justice Kennedy relied on this criticism. When the Court held that federal judges could order taxing authorities to exercise their powers, he strenuously objected that the Court's statements were not necessary for its judgment and should not be viewed as precedent for the future. Yet in the employment discrimination case of Wards Cove Packing, the Court could have effectively disposed of the case on the narrow grounds that the plaintiff had failed to make an adequate statistical showing. Nevertheless, the majority, joined by Justice Kennedy, went out of its way to resolve issues governing the burden of proof and the requisites for a Title VII plaintiff's evidence. The majority did so in the name of providing guidance for the lower courts yet triggered the debate that led to the Civil Rights Act of 1991. The same justification could have supported the pronouncements that Justice Kennedy was so critical of in Missouri v. Jenkins.
Materials on Justice Kennedy may be found in Nomination of Anthony M. Kennedy to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Judiciary Committee, 100th Cong., 1st Sess. ( 1987); Terry Carter, "Crossing the Rubicon," California Lawyer ( Oct. 1992), p. 39; Cynthia Gorney, "A Cautious Conservatism; Judge Kennedy Lives by the Rules," Washington Post, Dec. 14, 1987, p. Al; Robert Reinhold, "Man in the News; Restrained Pragmatist Anthony M. Kennedy," New York Times, Nov. 12, 1987, p. 1; Richard C. Reuben, "Man in the Middle," California Lawyer ( Oct. 1992), p. 34; Reynolds Holding, "Kennedy's High Court Decisions Stem from Belief in Precedent," San Francisco Chronicle, July 1, 1992, p. A4.
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Publication information: Book title: The Justices of the United States Supreme Court:Their Lives and Major Opinions. Volume: 5. Contributors: Leon Friedman - Editor, Fred L. Israel - Editor. Publisher: Chelsea House. Place of publication: New York. Publication year: 1997. Page number: 1757.
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