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.
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