The defining moments in Justice Kennedy’s tenure on the Court came in Planned Parenthood, Lawrence, and United States v. Windsor, where the Court did to the Constitution—in the name of liberty—what it also did—in the name of democracy—to Florida’s citizens in Bush v. Gore. In all three cases, Justice Kennedy’s reliance on a broad conception of liberty, rather than equal protection principles, shifted the balance too heavily in favor of judicial, rather democratic, creation of unenumerated fundamental rights.
Justice Kennedy will rightly be celebrated for safeguarding reproductive freedom and championing sexual autonomy for same-sex couples, but underneath the black robe and behind the curtain is a troubling history of manipulating the Constitution’s text and disregarding the constraints on judicial power. In the final analysis, Justice Kennedy will be remembered in part for being a progressive jurist and the Court’s swing voter. Kennedy’s lasting legacy will be one of enhancing judicial power, and of relying on a concept of liberty that was anything but libertarian.
- anthony kennedy,
- supreme court,
- substantive due process,
- lawrence v. texas,
- roe v. wade,
- fourteenth amendment
Available at: http://works.bepress.com/adam_lamparello/34/