The Constitutional Principles of Justice Kennedy: A Jurisprudence of Liberty and Equality

The Constitutional Principles of Justice Kennedy: A Jurisprudence of Liberty and Equality

The Constitutional Principles of Justice Kennedy: A Jurisprudence of Liberty and Equality

The Constitutional Principles of Justice Kennedy: A Jurisprudence of Liberty and Equality

Synopsis

Justice Anthony Kennedy is the nation's most influential jurist, but his constitutional opinions often elicit the criticism that he is led more by personal whimsy than by constitutional principle. A few recent defenders have described Kennedy's jurisprudence as uniquely devoted to the principle of liberty and even to libertarianism. Bartl argues that these defenders have been, in large part, correct but that they have missed half the story. While Kennedy indeed champions liberty where the Constitution demands it, he is no less the champion of equality where the Constitution focuses on that coequal and coordinate principle.
Justice Anthony Kennedy is the nation's most influential jurist, but his constitutional opinions often elicit the criticism that he is led more by personal whimsy than by constitutional principle. A few recent defenders have described Kennedy's jurisprudence as uniquely devoted to the principle of liberty and even to libertarianism. Bartl argues that these defenders have been, in large part, correct but that they have missed half the story. While Kennedy indeed champions liberty where the Constitution demands it, he is no less the champion of equality where the Constitution focuses on that coequal and coordinate principle.

Excerpt

After proclaiming him “the most powerful jurist in America,” The New York Times tartly adds: “The Constitution, it turns out, means exactly what Justice Kennedy says it means.” The general consensus among Court watchers reflects this insight, leading some to call it the “Kennedy Court.” While the consensus admits his influence, it holds his jurisprudence to be a mystery. In the confusion over his legal reasoning he has been characterized as everything from a profile in caprice to a pompous moralist, from a restrained pragmatist to an activist among activists. Though he is most often considered a “centrist,” tendencies toward “respectable conservatism” and “libertarianism” have also been identified. The most common account of Justice Kennedy remains the story of his critical swing vote in close cases whose outcome might go in either a liberal or conservative . . .

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