72 Am. U. L. Rev. 1501 (2023).
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Abstract
Few recent Supreme Court justices have had a greater impact on constitutional law than Anthony Kennedy. Although commentators have explored the substance of Justice Kennedy’s jurisprudence in some detail, legal scholars have not systematically analyzed the extent of his judicial activism. This Article uses the term “judicial activism” descriptively rather than normatively to help account for a judge’s willingness to strike down federal, state, and local laws on constitutional grounds. It finds that, under a descriptive definition, when compared to the justices with whom he served, Justice Kennedy was a singularly judicial activist judge.
This conclusion rests on three findings. First, employing quantitative analyses of the justices’ votes to strike down laws based on a new data set compiled for these purposes, the Article shows how Justice Kennedy chose judicial activism over restraint injudicial review cases to a significantly greater extent than most of the justices with whom he served for extended periods of time. Second, the Article qualitatively analyzes several of Justice Kennedy’s judicial review opinions and explains the extent to which they differed from those of justices to his ideological right and left by rarely expressing concerns about the importance of accounting for either the policy preferences of legislators or the hazards of judicial overreach.
Finally, the Article explains that Justice Kennedy was an equal opportunity judicial activist in ways that his more conservative and liberal colleagues were not. Justice Kennedy’s repeated willingness to strike down laws at the behest of advocates from across the political spectrum made him, in many ways, the perfect justice for his constitutional era. Justice Kennedy repeatedly responded positively to growing efforts by conservative and progressive advocates to gain judicial veto points for government policies they disliked on a wide variety of issues, including gun control, abortion, affirmative action, and LGBTQ rights. In offering legal scholarship’s first systematic analysis of Justice Kennedy’s judicial activism, the Article shows the extent to which he was a crucial player in the Court’s accrual of judicial power to strike down laws in the last Jew decades.
* Distinguished Professor of Law, Rutgers Law School. Hudson Cleveland, Bea Collins, Cyan Perry, and Andrew Vandini helped gather the judicial review data set explored in Part I of this Article. A big thanks to them for their assistance. Thank you as well to Michael Dorf, Jim Fleming, and David Noll for reading an earlier draft and providing me with thoughtful and helpful comments. All errors, both factual and conceptual, are solely mine.