Monday, April 25, 2016

From Supreme Court Review: Justice Kennedy's Jurisprudence

For a discussion of how Anthony Kennedy approaches the Constitution:

- Click here for the article.

It was clear from Kennedy's confirmation hearing that he was not an originalist, as was Bork or Scalia: he testified at his confirmation hearing: "Over time, the intentions of the framers are more remote from their particular political concerns, and so they have a certain purity and a certain generality now that they did not have previously . . . it sometimes takes humans generations to become aware of the moral consequences of their own conduct. That does not mean that moral principles have not remained the same."
For Kennedy, the liberties in the constitution are not strictly limited to the way they would have been applied at the time of the adoption of the constitution, rather they are general moral principles that may require different applications as time passes in order to maintain the generalized concepts of individuality, liberty and dignity that the framers memorialized in the constitution.
Because Justice Kennedy's philosophy is not as capable of being pigeonholed as other justices, Justice Kennedy has often confounded legal scholars who have attempted to extrapolate a rule-oriented jurisprudence from Justice Kennedy's decisions. In general, however, one can say that Justice Kennedy is reliably conservative in most areas except in cases involving individual rights. For example, Kennedy has consistently departed from his conservative colleagues in gay rights cases.

For more:

- Living in Anthony Kennedy’s World.
Anthony M. Kennedy: A Study of His Judicial Opinions.
- Anthony Kennedy turns moderation into power.
- The Key to Justice Kennedy? Why, It’s Liberty!

Here text from the last link:

The key to Justice ­Kennedy’s votes, Mr. Colucci says, is his moral ­reading of the Constitution: He sees the document as an unfolding story of ever greater individual liberty. Thus he ­opposes laws that abridge sexual ­freedom, including laws against homosexual conduct. If an originalist reading of the Constitution does not reveal such a liberty—relying on the received meaning of the ­Constitution’s words at the time they were ­written—Justice Kennedy’s moral ­reading does. But he is skeptical of race-conscious ­programs, too, because they treat applicants as members of a group rather than as individuals who possess the right to be free from group-based policies or rules.
. . . Most valuably, Mr. Colucci shows Justice Kennedy’s judicial philosophy to be a deeply rooted one and not, as one might suspect, the result of varied decisions that require a casuist or law professor to make coherent. He unearths a speech from 1986 in which Justice Kennedy (then an appeals-court judge) criticized ­Bowers v. Hardwick, a case in which the Supreme Court upheld a conviction for sodomy. At the time the judge did not argue, as others had, that the decision ­violated the right to privacy minted more than a ­decade before in Roe v. Wade. He argued instead that the liberty interests of gay Americans had been breached. In 2003, the court overruled Bowers v. Hardwick, and Justice Kennedy wrote the majority opinion using the rhetoric of liberty rather than privacy.

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