The principled constitutionalism of Justice Anthony M. Kennedy.

Date

2012-08

Authors

Bartl, Anthony D.

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Worldwide access.
Access changed 1/14/14.

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Abstract

Justice Kennedy is the nation's most influential jurist, but he is given little respect as a constitutional and legal thinker. Often called the "swing justice" for his pivotal position between the Supreme Court's "liberal" and "conservative" blocs, his frequent control of the Court's most controversial cases is often resented and criticized for an apparent lack of a consistent basis in constitutional principle or jurisprudential method. This dissertation joins the work of those who have previously sought to defend Kennedy from the charge that his jurisprudence lacks integrity. It differs from those previous works, however, by acknowledging a diversity to Kennedy's arguments that prevents his approach from being captured by a single ideological or methodological commitment. Whereas Kennedy's previous defenders have sought to uncover a particular method or an overarching idea that guides his jurisprudence, I argue the Kennedy finds different principles at work in the Constitution and sees his role as a judge to give full voice to these principles as demanded by the context of particular cases. To show how Kennedy's thought reflects upon these principles, I examine his opinions in certain critical and controversial areas of constitutional law--establishment and free exercise, speech and press, and due process liberty. Moving through Kennedy's opinions, a clear commitment emerges to liberty and equality as preeminent constitutional principles that often work together but sometimes find themselves in tension. In Kennedy's understanding, a proper resolution of cases where these principles conflict requires careful exploration of the meaning of these principles and the prudent use of judgment to find "correct balance in constitutional interpretation."

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Keywords

Supreme Court., Kennedy, Anthony., Judicial studies., Constitutional law.

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