Justice Anthony M. Kennedy and substantive due process : why the most powerful judge in American history isn't as crazy as everyone thinks he is.
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Capper, David Winston.
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This dissertation seeks to challenge the widely accepted characterization of Associate Justice Anthony Kennedy as a political moderate or ‘swing’ Justice. Looking at one of the most contentious areas of constitutional law–substantive due process–the dissertation considers the major substantive due process cases that the Court has heard during Kennedy’s tenure, and, by explaining how the apparent contradictions in his jurisprudence reveal that, rather than inconsistency, Kennedy has a consistent methodology for approaching substantive due process cases that is both respectful of precedent, as well as one which seeks to limit the Court’s power in this area of constitutional law. The dissertation will demonstrate that while Justice Kennedy is neither a true moderate like the late Justice Lewis Powell, nor a political ideologue, but a judicial and political conservative who seeks to rest the Court’s decision-making on a stable and methodical approach, rather than an inherently unstable political ideology.