Justice Kennedy's Jurisprudence
The Full and Necessary Meaning of Liberty
Sales Date: March 9, 2009
256 Pages, 6.00 x 9.00 in
- Published: March 2009
To understand today’s Supreme Court, it is essential to understand the judicial philosophy of its swing vote. For twenty years, Justice Anthony M. Kennedy has voted with the majority more than any of his colleagues. He has provided the deciding vote in cases involving politically charged issues such as affirmative action, the 2000 presidential election, religious expression, gay rights, and executive power to detain suspected terrorists. With a record reliably neither liberal nor conservative, Kennedy has generally been viewed as a capricious, indecisive moderate.
Frank Colucci, however, argues that Kennedy indeed displays a coherent approach to constitutional interpretation. Colucci digs deep into the Justice’s record, offering a close analysis of not only of Kennedy’s opinions on the Court but also his prior opinions on the 9th Circuit Court of Appeals, his off-the-bench speeches delivered before becoming a Justice, and his testimony at confirmation hearings. Colucci identifies Kennedy’s core belief: that judges have a duty to ensure the word liberty in the Constitution be given its full and necessary meaning.
Colucci shows that Kennedy rejects theories of originalism and judicial restraint. Instead, Kennedy adopts a moral reading of the Constitution—similar to that championed by Ronald Dworkin and Randy Barnett as well as former Justice William J. Brennan—in which liberty and human dignity trump even democracy.
Depicting Kennedy as seeking an alternative to the perceived excesses of both the Warren Court and originalist overreaction, Colucci also compares Kennedy’s rhetoric to Catholic teaching and shows him as struggling to disassociate his personal beliefs from his official duties. Separate chapters offer close readings of Kennedy’s jurisprudence regarding abortion, free speech, equality, and government structure.
Colucci’s persuasive account offers readers a more nuanced understanding of Justice Kennedy’s arguments about the nature of personal liberty and the proper role of courts in defining and enforcing it.
“For all its importance, Justice Kennedy’s outlook can appear puzzling at times, either maddeningly capricious or philosophically incoherent. Colucci manages to define it with admirable precision, debunking along the way the oversimple ways in which Justice Kennedy has been characterized by people who disagree with his decisions. . . . Most valuably, 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 succeeds wonderfully in explaining Justice Kennedy . . . “—Wall Street Journal
"[By focusing on Justice Kennedy’s language and reasoning, as opposed to merely analyzing his voting patterns, Professor] Colucci provides valuable insight into the philosophy of one of the most influential jurists of our time."—Harvard Law Review
"Highly recommended. All readership levels."—Choice
"The gap in understanding Kennedy has been at least partly—and nicely—filled by this book. Colucci has mined Kennedy’s public papers, including useful material from beyond the bench writings, and produced a readable volume of analysis that is, on the whole, convincing."—SCOTUSblog
“Justice Kennedy now stands at the center of the Court and is pivotal to many of its most important decisions. Colucci’s study provides a penetrating and much needed look at this critical figure in modern American politics.”—Keith E. Whittington, author of Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review
“A carefully crafted, comprehensive, and provocative account of Justice Kennedy’s jurisprudence. Colucci makes a convincing case for the proposition that, far from being a seat-of-the-pants situationalist, Kennedy is steering towards a consistent and principled moralism, committed to the realization of a constitutional liberty according profound respect for human dignity.“—Ken I. Kersch, author of Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law
1. Liberty, Dignity, and Personality
2. Still Struggling: Anthony Kennedy and Abortion
3. Kennedy’s Expansive Conception of Free Speech
4. Kennedy’s Equality of Neutral Individualism
5. Splitting the Atom of Sovereignty: Dignity and Divided Power
Conclusion: Liberty above Democracy
Appendix A:. Transcription of Kennedy’s handwritten note to Blackmun, June 21, 1990
Appendix B. Transcription of Blackmun’s notes from meeting with Kennedy, May 30, 1992