# Justice Anthony Kennedy: His Jurisprudence and the Future of the Court

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## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** July 11, 2018
- **Citation:** R45256

## Text

Justice Anthony Kennedy: His Jurisprudence
and the Future of the Court
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July 11, 2018

Congressional Research Service
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R45256

SUMMARY

Justice Anthony Kennedy: His Jurisprudence
and the Future of the Court
On June 27, 2018, Justice Anthony M. Kennedy announced that, effective July 31, 2018, he
would retire from active service as an Associate Justice on the Supreme Court of the United
States. His decisive role on the Court, particularly since the Roberts Court era began in 2005,
cannot be overstated. The Roberts Court era has witnessed the Court issue a number of landmark
rulings, many of which have involved matters where the sitting Justices were closely divided.
Justice Kennedy typically voted with the majority of the Court in such cases. Since the October
2005 term that marked the beginning of the Roberts Court, Justice Kennedy voted for the
winning side in a case more often than any of his colleagues in 9 out of 12 terms.

R45256
July 11, 2018
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Legislative Attorney
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Unlike several other Justices on the Court, Justice Kennedy did not necessarily subscribe to a
For a copy of the full report,
particular judicial philosophy, such as originalism or textualism. Instead, Justice Kennedy’s
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judicial approach seemed informed by a host of related principles. First, Justice Kennedy’s views
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on the law were often grounded in concerns for personal liberty, particularly freedom from
government interference with thought, belief, expression, and certain intimate conduct. His emphasis on liberty manifested
itself in a range of opinions he wrote or joined during his tenure on the Court, including on issues related to free speech,
religious freedom, and government policies concerning same-sex relationships. Second, the structural protections of the
Constitution—i.e., restraints imposed on the federal government and its respective branches by the doctrines of federalism
and separation of powers—also animated Justice Kennedy’s jurisprudence. For Justice Kennedy, separation of powers was a
“defense against tyranny,” and he authored or joined a number of Court opinions that invalidated on separation-of-powers
grounds intrusions on the executive, legislative, or judicial functions. Likewise, during the Rehnquist Court and Roberts
Court eras, Justice Kennedy joined several majority opinions that recognized federalism-based limitations on the enumerated
power of the federal government, established external limitations on Congress’s legislative powers over the states, and
reaffirmed protections for state sovereignty. Third, Justice Kennedy’s jurisprudence was undergirded by his view that the
Court often has a robust role to play in resolving issues of national importance. With Justice Kennedy casting critical votes,
over the last 30 years the Court has reasserted its role in a number of areas of law in which it was previously deferential to the
judgment of the political branches.
Given Justice Kennedy’s outsized role on the Roberts Court, whoever succeeds him could have an important influence on
any number of areas of law. In particular, Justice Kennedy’s votes were critical to the outcome of numerous Court decisions
on matters relating to abortion, business law, civil rights, the death penalty, the regulation of elections, eminent domain, the
environment, federalism, the First Amendment, gun rights, immigration, national security, oversight of the administrative
state, and separation of powers. Accordingly, Justice Kennedy’s jurisprudence in these areas—particularly in cases where he
was the deciding vote—may be especially relevant to the Senate as it determines whether to approve the President’s nominee
to replace the soon-to-be-retired Justice.
On July 9, 2018, President Trump announced the nomination of Judge Brett M. Kavanaugh of the U.S. Court of Appeals for
the District of Columbia Circuit (D.C. Circuit) to– fill the impending vacancy on the Supreme Court caused by Justice
Kennedy’s scheduled retirement. CRS reports analyzing Judge Kavanaugh’s jurisprudence on particular areas of the law, as
well as a tabular listing of lower-court decisions in which he authored opinions, are in preparation.

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Justice Anthony Kennedy: His Jurisprudence and the Future of the Court

Contents
An Overview of Justice Kennedy’s Jurisprudence .......................................................................... 4
Individual Liberty...................................................................................................................... 4
Structural Protections of the Constitution ................................................................................. 8
The Role of the Judiciary ........................................................................................................ 10
Justice Kennedy’s Decisive Votes in Roberts Court-Era Cases .................................................... 13
Administrative Law ................................................................................................................. 14
Business Law .......................................................................................................................... 15
Civil Rights ............................................................................................................................. 16
Criminal Law and Procedure .................................................................................................. 17
Cruel and Unusual Punishment ............................................................................................... 19
Environmental Law ................................................................................................................. 20
Federalism ............................................................................................................................... 21
Freedom of Religion ............................................................................................................... 22
Freedom of Speech.................................................................................................................. 23
National Security..................................................................................................................... 24
Second Amendment ................................................................................................................ 25
Separation of Powers............................................................................................................... 26
Substantive Due Process and Fundamental Rights ................................................................. 27
The Takings Clause and Eminent Domain .............................................................................. 29
Conclusion ..................................................................................................................................... 30

Tables
Table A-1. Justice Anthony Kennedy As a “Swing” Vote: Constitutional Law Decisions ............ 34
Table A-2. Justice Anthony Kennedy As a “Swing” Vote: Statutory Law Decisions .................... 50
Table A-3. Justice Anthony Kennedy As a “Swing” Vote: Miscellaneous Legal Decisions ......... 64
Table A-4. Common Voting Groups in Closely Divided Cases During the Roberts Court
Era (October 2005 Term-October 2017 Term) ........................................................................... 66

Appendixes
Appendix. Justice Kennedy As a “Swing” Vote on the Roberts Court: Select Data ..................... 31

Contacts
Author Contact Information .......................................................................................................... 67

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Justice Anthony Kennedy: His Jurisprudence and the Future of the Court

n June 27, 2018, Justice Anthony M. Kennedy announced that, effective July 31, 2018, he
would retire from active service as an Associate Justice on the Supreme Court of the
United States.1 Nominated to replace Justice Lewis Powell in 1987,2 Justice Kennedy has
been one of the longest-serving Justices in the history of the Court.3 His decisive role on the
Court, particularly during the Roberts Court era, cannot be overstated. While Justice Kennedy has
been a critical vote on the Court for much of his 30-year tenure,4 since the October 2005 term that
marked the beginning of the Roberts Court, Justice Kennedy has been the Court’s “median
Justice,”5 voting for the winning side in a case more often than any of his colleagues in 9 out of
12 terms.6

O

During this era, the High Court issued a number of landmark rulings that spanned the ideological
spectrum. For instance, during the Roberts Court era, the Court held that the Fourteenth
Amendment to the Constitution requires states to recognize marriages between same-sex couples
in the same circumstances as they recognize marriages between opposite-sex couples;7
invalidated state laws viewed to impose an “undue burden” on a woman’s right to terminate a
pregnancy;8 afforded enemy belligerents detained at Guantanamo Bay certain procedural
protections;9 and concluded that the Eighth Amendment prohibits the states from imposing the
death penalty10 or a sentence of life without parole in certain circumstances.11 At the same time,
since 2005, the Court also struck down campaign finance laws banning corporate independent
1 See Hon. Anthony M. Kennedy, Letter to the President (June 27, 2018),

https://www.supremecourt.gov/publicinfo/press/Letter_to_the_President_June27.pdf. Justice Kennedy did not resign
from the Court, but instead retired pursuant to 28 U.S.C. § 371(b), a provision that allows a Justice to maintain his
salary and his eligibility to sit by designation on the lower courts.
2 See SUPREME COURT NOMINATIONS, PRESENT-1789, U.S. SENATE,
https://www.senate.gov/pagelayout/reference/nominations/Nominations.htm (last visited July 5, 2018) (indicating that
President Ronald Reagan nominated Anthony M. Kennedy on November 30, 1987, and that the Senate provided its
consent to the nomination on February 3, 1988).
3 By comparison to Justice Kennedy’s 30-year tenure on the Court, the Supreme Court website notes that the longestserving Chief Justice, John Marshall, served more than 34 years, while the longest-serving Associate Justice, William
O. Douglas, served more than 36 years. See SUPREME COURT OF THE UNITED STATES, Frequently Asked Questions
(FAQ), Version 2014.1 (last visited July 5, 2018), https://www.supremecourt.gov/about/members_text.aspx.
4 See Alicia Parlapiano & Jugal K. Patel, With Kennedy’s Retirement, the Supreme Court Loses its Center, N.Y. TIMES
(June 27, 2018), https://www.nytimes.com/interactive/2018/06/27/us/politics/kennedy-retirement-supreme-courtmedian.html (“For much of his tenure, Justice Kennedy has been the median justice, falling in the court’s ideological
center, according to a measure based on voting patterns . . . From 1993 to 2005, Justice Kennedy shared the center of
the Court with Justice Sandra Day O’Connor.”).
5 Id. (noting that after Justice O’Connor retired from the Court in 2005, Justice Kennedy was consistently the “median”
Justice on the Court).
6 See CRS Legal Sidebar LSB10159, Justice Kennedy Retires: Initial Considerations for Congress, by (name redacted)
and (name redacted)
(noting that, save for the October 2017, 2014, and 2007 terms, Justice Kennedy was the most
frequent Justice to be part of the deciding majority in cases decided each term by the Roberts Court).
7 See Obergefell v. Hodges, 135 S. Ct. 2584, 2593 (2015) (Kennedy, J.) (joined by Justices Ginsburg, Breyer,
Sotomayor, and Kagan).
8 See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016) (Breyer, J.) (joined by Justices Kennedy,
Ginsburg, Sotomayor, and Kagan); see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878 (1992)
(plurality opinion by Kennedy, O’Connor, and Souter, JJ.).
9 See Boumediene v. Bush, 553 U.S. 723, 733 (2008) (Kennedy, J.) (joined by Justices Stevens, Souter, Ginsburg, and
Breyer).
10 See Kennedy v. Louisiana, 554 U.S. 407, 413 (2008) (Kennedy, J.) (joined by Justices Stevens, Souter, Ginsburg,
and Breyer).
11 See Miller v. Alabama, 567 U.S. 460, 465 (2012) (Kagan, J.) (joined by Justices Kennedy, Ginsburg, Breyer, and
Sotomayor).

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expenditures for electioneering communications;12 invalidated Section 5 of the Voting Rights Act
of 1965 on federalism grounds;13 recognized that the Second Amendment protects an individual’s
right to possess a firearm and to use that firearm for lawful purposes;14 upheld President Trump’s
proclamation placing entry restrictions on foreign nationals from specified countries;15 and
invalidated on First Amendment grounds state laws that aimed to regulate certain commercial
activities.16 In all of these cases, the sitting Justices were closely divided, and the composition of
Justices in the deciding majority in such cases shifted dramatically from case-to-case with one
exception: Justice Kennedy.17
Perhaps because of his pivotal role on the Court, like Justice Powell whom he succeeded,18
Justice Kennedy was viewed by many to be the Court’s “swing” vote.19 The label of being a
“swing vote” on the Court, however, may invite misleading conclusions about Justice Kennedy’s
approach to cases.20 As several commentators have noted, Justice Kennedy’s jurisprudence did
not necessarily focus on compromise or balance in the Court’s decisions,21 but was instead, at
12 See, e.g., Citizens United v. FEC, 558 U.S. 310, 319 (2010) (Kennedy, J.) (joined by Chief Justice Roberts and

Justices Scalia and Alito and joined in part by Justice Thomas).
13 See Shelby Cty. v. Holder, 570 U.S. 529, 557 (2013) (Roberts, CJ) (joined by Justices Scalia, Kennedy, Thomas, and
Alito).
14 See District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (Scalia, J.) (joined by Chief Justice Roberts and Justices
Kennedy, Thomas, and Alito).
15 See Trump v. Hawaii, No. 17-965, 2018 WL 3116337, at *4 (June 26, 2018) (Roberts, CJ) (joined by Justices
Kennedy, Thomas, Alito, and Gorsuch).
16 See, e.g., Sorrell v. IMS Health Inc., 564 U.S. 552, 557 (2011) (Kennedy, J.) (joined by Chief Justice Roberts and
Justices Scalia, Thomas, Alito, and Sotomayor).
17 Underscoring Justice Kennedy’s critical role on the Roberts Court, in several cases, because of sharp disagreements
between the remaining eight Justices, Justice Kennedy authored separate concurring opinions that functionally
controlled the outcome of the case. See, e.g., Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,
789 (2007) (Kennedy, J., concurring in judgment) (while agreeing with the plurality that the policy being challenged
was unconstitutional, concluding that race-conscious strategies aimed at promoting diversity in education could be
devised that would satisfy strict scrutiny). League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 417-19 (2006)
(Kennedy, J.) (stating that while the goal of policing partisan gerrymandering is a “salutary” one, the test proposed by
the plaintiffs was “not convincing”); Rapanos v. United States, 547 U.S. 715, 759 (2006) (Kennedy, J., concurring in
judgment) (maintaining that wetlands that possess a “significant nexus” to traditionally navigable waters may be
regulated under the Clean Water Act). Vieth v. Jubelirer, 541 U.S. 267, 306 (2004) (Kennedy, J., concurring in
judgment) (“While agreeing with the plurality that the complaint the appellants filed in the District Court must be
dismissed, and while understanding that great caution is necessary when approaching this subject, I would not foreclose
all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of
the Constitution in some redistricting cases.”).
18 See JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR.: A BIOGRAPHY xi (1994) (describing Justice Powell as the
“most powerful man in America” because of his position at the “ideological center of a divided Court”).
19 See, e.g., Massimo Calabresi & David Von Drehle, What Will Justice Kennedy Do?, TIME, June 18, 2012, at 28;
James C. Phillips & Edward L. Carter, Oral Argument in the Early Roberts Court: A Qualitative and Quantitative
Analysis of Individual Justice Behavior, 11 J. APP. PRAC. & PROCESS 325, 361-62 (2010) (“As the Roberts Court’s
swing or median justice, Justice Kennedy likely wields a disproportionately large influence compared to the other
justices who tend to be more consistently liberal or conservative.”); JEFFREY ROSEN, THE SUPREME COURT 236 (2007)
(describing Justice Anthony Kennedy as the “swing justice” who has the “unique opportunity to determine the outcome
of the most controversial cases on his own”).
20 See, e.g., Kristin M. McGaver, Getting Back to Basics: Recognizing and Understanding the Swing Voter on the
Supreme Court of the United States, 101 MINN. L. REV. 1247, 1248 (2017) (“There is an extensive history and tradition
of labeling Supreme Court Justices as ‘swing’ Justices. And yet the content of this label remains unclear.”).
21 See, e.g., Ashutosh Bhagwat, Liberty or Equality?, 20 LEWIS & CLARK L. REV. 381, 382 (2016) (“But Justice
Kennedy’s widely recognized position as the swing Justice . . . obscures another and unusual reality about his role on
the Court. Historically, swing Justices have tended to share certain characteristics: they have been pragmatists, lacking
a strong jurisprudential philosophy, but instead valuing effective problem solving. . . . Justice Kennedy is just not a

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times, informed by principles that resulted in votes that could not be categorized uniformly by a
conservative or liberal ideology.22 For his part, Justice Kennedy resisted the “swing vote”
moniker, declaring in a 2015 interview that “[t]he cases swing, I don’t.”23 As a result, an
examination of the underlying cases in which Justice Kennedy cast critical votes during the
Roberts Court era may be necessary to fully gauge his jurisprudence and the significance of his
retirement.
This report provides a broad overview of Justice Kennedy’s approach to the law, with a particular
emphasis on how he interpreted the Constitution. The report then discusses what his retirement
may mean for the future of the Court in various areas of the law, broadly noting key legal
decisions during the Roberts Court era in which Justice Kennedy cast a decisive vote. The report
does not, however, purport to discuss fully every area of law that Justice Kennedy considered
during his more than three decades of service on the Court. Nonetheless, guided by several tables
in the Appendix noting the opinions in which Justice Kennedy cast decisive votes during the
Roberts Court era, the report highlights key aspects of Justice Kennedy’s jurisprudence and the
key legal issues where his absence from the Court could result in a shift in the Court’s
jurisprudence.
On July 9, 2018, President Trump announced the nomination of Judge Brett M. Kavanaugh of the
U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill the impending
vacancy on the Supreme Court caused by Justice Kennedy’s scheduled retirement. CRS reports
analyzing Judge Kavanaugh’s jurisprudence on particular areas of the law, as well as a tabular
listing of lower-court decisions in which he authored opinions, are in preparation.

centrist pragmatist, lacking a strong judicial philosophy.”); Jan Crawford Greenburg, The Roberts Court, LEGALITIES
(May 15, 2007 11:56 AM), https://web.archive.org/web/20070521025813/http://blogs.abcnews.com/legalities
(“Kennedy is not O’Connor. Kennedy doesn’t instinctively seek the middle or try to provide balance. He is perfectly
willing to vote with conservatives nine times in a row—then vote with them a tenth—if that’s how he sees the case. He
wants to be consistent. And when he decides on his position, he’s pretty comfortable there.”); Jeffrey Rosen, The
Arrogance of Justice Anthony Kennedy, THE NEW REPUBLIC (June 18, 2007),
https://newrepublic.com/article/60925/supreme-leader-the-arrogance-anthony-kennedy (“[T]he contrast between
Kennedy and O’Connor is stark. . . . Kennedy instinctively prefers opinions that are broad and deep. He attempts to
identify a sweeping principle of justice and then tries to impose his abstractions on society.”).
22 See FRANK J. COLUCCI, JUSTICE KENNEDY’S JURISPRUDENCE: THE FULL AND NECESSARY MEANING OF LIBERTY 1, 5
(2009) (“Kennedy, properly understood is neither a profile in caprice nor a judicial minimalist . . . his opinions exhibit
consistent, distinctive assumptions about how judges should interpret the Constitution and about the substantive values
of liberty and human dignity its provisions protect.”); Jack Goldsmith, Justice Kennedy’s Retirement Leaves the Future
of U.S. Constitutional Law Entirely Up for Grabs, WASH. POST (June 27, 2018),
https://www.washingtonpost.com/opinions/justice-kennedys-retirement-is-the-biggest-event-in-us-jurisprudence-in-atleast-15-years/2018/06/27/746db704-585d-11e7-b38e-35fd8e0c288f_story.html (“While Kennedy lacked an
overarching jurisprudential commitment, some combination of three principles informed most of his landmark
rulings.”).
23 See Marcia Coyle, Justice Anthony Kennedy Loathes the Term ‘Swing Vote,’ NAT’L L.J. (Oct. 27, 2015),
http://www.nationallawjournal.com/id=1202740827841/Justice-Anthony-Kennedy-Loathes-the-Term-SwingVote?slreturn=20160129233646 (“And if you want to get on the wrong side of Kennedy, call him the high [C]ourt’s
‘swing vote.’ ‘I hate that term,’ he said. ‘I get this visual image of spatial gyrations. The cases swing; I don’t.’”).

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An Overview of Justice Kennedy’s Jurisprudence
As one legal scholar has observed, “identifying Justice Kennedy’s judicial philosophy is no easy
task.”24 Unlike Justice Antonin Scalia,25 his colleague for nearly 28 years on the High Court,
Justice Kennedy did not subscribe to a particular judicial philosophy, such as originalism or
textualism.26 In his 1987 confirmation hearings, Justice Kennedy eschewed committing himself to
a “single, overarching theory” of legal interpretation.27 For instance, in response to a question
posed by Senator Robert Byrd concerning the role of history when interpreting the Constitution,
the nominee opined that a judge cannot rely only on “history in order to make the meaning of the
Constitution more clear,” and that “new generations” can also “yield new insights and new
perspectives” that change “our understandings” of the Constitution.28 These and similar
statements made during his confirmation hearing29 appear to have presaged the approach taken by
Justice Kennedy on the Court, wherein he often synthesized several approaches to judging to
guide his decision as to the appropriate result in a given case.30 Justice Kennedy’s approach to
judging appeared informed by certain guiding principles,31 three of the most determinative of
which are discussed below.

Individual Liberty
Justice Kennedy’s jurisprudence was often grounded in concerns for personal liberty,32 that is,
freedom from government interference with “thought, belief, expression, and certain intimate
conduct.”33 The Justice’s concerns for liberty manifested themselves in several free speech cases,
wherein Justice Kennedy took the view that the First Amendment prohibited government actions

24 A.E. Dick Howard, Ten Things the 2012-13 Term Tells Us About the Roberts Court, 99 VA. L. REV. ONLINE 48, 59

(2013); see also Goldsmith, supra note 22 (maintaining that Justice Kennedy “lacked an overarching jurisprudential
commitment”); Ilya Shapiro, Justice Kennedy: the Once and Future Swing Vote, CATO COMMENTARY (Nov. 13, 2016),
https://www.cato.org/publications/commentary/justice-kennedy-once-future-swing-vote (“Kennedy is a sui generis
enigma at the heart of the modern Supreme Court.”).
25 See Lyle Denniston, Book Review: Justice Kennedy’s Law, SCOTUSblog (Dec. 29, 2009, 1:33 p.m.),
http://www.scotusblog.com/2009/12/book-review-justice-kennedys-law/ (“Few understand [Justice Kennedy] in the
way that virtually everyone can, and does, understand the more accessible philosophy of, say, his colleague, Justice
Antonin Scalia.”). For more on Justice Scalia’s approach to the law, see CRS Report R44419, Justice Antonin Scalia:
His Jurisprudence and His Impact on the Court, coordinated by (name redacted) and (name redacted) .
26 See COLUCCI, supra note 22, at 5, 8; see also THOMAS R. HENSLEY ET AL., THE CHANGING SUPREME COURT:
CONSTITUTIONAL RIGHTS AND LIBERTIES 75 (1997) (stating that Justice “Kennedy does not appear to have a consistent
judicial philosophy to guide his decision making”).
27 See TINSLEY E. YARBROUGH, THE REHNQUIST COURT AND THE CONSTITUTION 17 (2000) (describing Justice
Kennedy’s views of the law at his confirmation hearing).
28 Confirmation Hearings on the Nomination of Anthony M. Kennedy to Be Associate Justice of the Supreme Court of
the United States Before the S. Comm. on the Judiciary, 100th Cong. 88, 164, 231-32 (1987).
29
See YARBROUGH, supra note 27, at 17.
30 See Akhil Reed Amar, Justice Kennedy and the Ideal of Equality, 28 PAC. L.J. 515, 520 (1997) (describing Justice
Kennedy’s approach to legal interpretation as a “beautiful synthesis of principled legalism and honest realism”).
31 See Goldsmith, supra note 22.
32 See Bhagwat, supra note 21, at 383 (“[W]hat then is the content of Justice Kennedy’s underlying philosophy? The
answer there is I think quite clear: a driving dedication to individual liberty, in all of its manifestations.”); see also
Goldsmith, supra note 22 (describing Justice Kennedy’s jurisprudence as being “informed” by the related principles of
dignity and liberty).
33 See Lawrence v. Texas, 539 U.S. 558, 562 (2003) (Kennedy, J.).

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that told individuals what they could say or what they could hear.34 For instance, on the day
before he announced his retirement, Justice Kennedy authored a concurring opinion to explain
how government paternalism with respect to speech could “imperil[]” liberty:
It is forward thinking to begin by reading the First Amendment as ratified in 1791; to
understand the history of authoritarian government as the Founders then knew it; to confirm
that history since then shows how relentless authoritarian regimes are in their attempts to
stifle free speech; and to carry those lessons onward as we seek to preserve and teach the
necessity of freedom of speech for the generations to come. . . . Freedom of speech secures
freedom of thought and belief. 35

In this vein, Justice Kennedy, on behalf of the Court in Citizens United v. FEC, struck down a
federal campaign finance law banning corporate independent expenditures for electioneering
communications, rejecting arguments that the government needed to police corporate political
speech.36 For Justice Kennedy, when the “[g]overnment seeks to use its full power . . . to
command where a person may get his or her information or what distrusted source he or she may
not hear, it uses censorship to control thought” in violation of the First Amendment.37 This
rationale undergirded several other cases in which Justice Kennedy viewed the First Amendment
to impose clear limits on the government’s ability to regulate speech within the commercial
sphere.38
Justice Kennedy’s emphasis on liberty also manifested itself in a number of decisions he authored
or joined on issues implicating religion. For instance, in Church of Lukumi Babalu Aye v. City of
Hialeah, Justice Kennedy, on behalf of the Court, struck down a set of ordinances enacted by a
Florida city prohibiting animal sacrifice,39 viewing the challenged laws as designed to “persecute
or oppress” adherents to the Santeria religion.40 In so doing, Justice Kennedy cautioned against
“state intervention stem[ming] from animosity to religion or distrust of its practices,” and
identified what he viewed to be the “high duty” imposed on government officials by the First
Amendment: to “commit[] government to religious tolerance.”41 Quoting Lukumi 25 years later in
his opinion for the Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Justice
Kennedy concluded that a state civil rights commission violated its “duty” to not treat a party
before it with hostility because of that party’s religious beliefs.42 Likewise, expressing concern
34 See HELEN J. KNOWLES, THE TIE GOES TO FREEDOM: JUSTICE ANTHONY M. KENNEDY ON LIBERTY 60-62 (2009); see

also Bhagwat, supra note 21, at 384 (“The hallmark of Justice Kennedy’s free speech jurisprudence is a hatred of
paternalism.”).
35 Nat’l Inst. of Family & Life Advocates v. Becerra, No. 16-1140, 2018 WL 3116336, at *16 (U.S. June 26, 2018)
(Kennedy, J., concurring).
36 See Citizens United v. FEC, 558 U.S. 310, 319 (2010) (Kennedy, J.).
37 Id. at 356.
38 See, e.g., Sorrell v. IMS Health Inc., 564 U.S. 552, 578-79 (2011) (Kennedy, J.) (declaring that “[t]he State may not
burden the speech of others in order to tilt public debate in a preferred direction,” even in the “commercial
marketplace” which, “like other spheres of our social and cultural life, provides a forum where ideas and information
flourish.”) (internal citations omitted); Edenfield v. Fane, 507 U.S. 761, 777 (1993) (Kennedy, J.) (“Even under the
First Amendment’s somewhat more forgiving standards for restrictions on commercial speech, a State may not curb
protected expression without advancing a substantial governmental interest.”); see also Lorillard Tobacco Co. v. Reilly,
533 U.S. 525, 571-72 (2001) (Kennedy, J., concurring) (noting his “continuing concerns” that the Court’s commercial
speech jurisprudence gives “insufficient protection to truthful, nonmisleading commercial speech.”).
39 508 U.S. 520, 524 (1993).
40 Id. at 547.
41 Id.
42 See 138 S. Ct. 1719, 1731 (2018).

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over the “danger[s] to liberty” that “lie” when the state excludes religious groups from a public
forum or exhibits viewpoints based on hostility toward religion,43 Justice Kennedy wrote or
joined several opinions that resulted in public spaces being opened for use by religious entities.44
Nonetheless, the soon-to-be-retired Justice viewed the constitutional requirement of tolerance to
apply to how religious adherents treated the nonreligious, as well. Writing for the Court in Lee v.
Weisman, Justice Kennedy held that the First Amendment’s Establishment Clause prohibited a
sectarian invocation and benediction at a public school graduation ceremony, maintaining that
“prayer exercises in public schools carry a particular risk of indirect coercion” for objecting
students, who may feel embarrassed or pressured by the state’s action.45
Beyond the realm of the First Amendment, Justice Kennedy’s liberty jurisprudence animated a
number of decisions in which the Court struck down several federal and state laws on either equal
protection or substantive due process grounds.46 In particular, his substantive due process cases
seemed informed by a particular consideration related to liberty—the belief that the government
must treat individuals with “dignity”47—when concluding that a government measure either
infringed upon an individual’s right to privacy or involved the sanctioned animus toward a
particular group.48 For instance, in Planned Parenthood of Southeastern Pennsylvania v. Casey, a
plurality opinion of the Court authored by Justice Kennedy, along with Justice Sandra Day
O’Connor and Justice David Souter,49 declared that the Constitution prohibits the government
from interfering with certain life decisions “central to personal dignity and autonomy” because at
the “heart of liberty” “is the right to define one’s own concept of existence, of meaning, of the
universe, and of the mystery of human life.”50 For the Casey plurality, “there is a realm of
personal liberty which the government may not enter.”51 And Justice Kennedy echoed the themes
of Casey in his opinion for the Court in Lawrence v. Texas, where the Court struck down a law
that criminalized homosexual sodomy52 on the grounds that the Due Process Clause gives all
people the “full right to engage in private [sexual] conduct without government intervention.”53

43 See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 835(1995) (Kennedy, J.).
44 See, e.g., id. at 830-31; see also Good News Club v. Milford Central School, 533 U.S. 98 (2001); Lamb’s Chapel v.

Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 397 (1993); cf. Christian Legal Soc’y Chapter of the Univ. of Cal.
v. Martinez, 561 U.S. 661, 669 (2010).
45 Lee v. Weisman, 505 U.S. 577, 592 (1992).
46 The Court has interpreted the Fifth and Fourteenth Amendments’ Due Process Clauses to contain a substantive
component, wherein the Constitution protects certain fundamental liberty interests from deprivation by the government,
unless the infringement is narrowly tailored to serve a compelling state interest. See Washington v. Glucksberg, 521
U.S. 702, 719-21 (1997).
47 See Bhagwat, supra note 21, at 384 (“The other noteworthy aspect of Justice Kennedy’s commitment to liberty is
that it is not abstract, it is instead tied to a very specific value: human dignity.”).
48 While the concept of dignity in constitutional law is not self-explanatory, dignity has been recognized to encompass
two related principles: (1) a principle stating that the government may not govern with animus toward long-persecuted,
unpopular societal groups; and (2) an autonomy principle stating that there are certain spheres of a person’s life that the
government simply cannot enter. See (name redacted),The Concept of “Dignity” as an Individual Right in Recent
Rulings from the Roberts Court, CRS Congressional Distribution Memorandum, at 4-8 (Sept. 1, 2014) (available upon
request).
49 505 U.S. 833, 849 (1992) (plurality opinion by Kennedy, O’Connor, and Souter, JJ.)
50 Id. at 851.
51 Id. at 847.
52 See 539 U.S. 558, 578 (2003) (Kennedy, J.).
53 Id. at 578.

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Lawrence was one of four opinions Justice Kennedy authored that, relying on a broad view of the
concepts of liberty and dignity, invalidated laws on the grounds they interfered with the rights of
persons who engage in same-sex relationships. First, in Romer v. Evans, the Supreme Court
struck down an amendment to the Colorado Constitution prohibiting “all legislative, executive, or
judicial action at any level of state or local government” designed to protect persons based on
their gay, lesbian, or bisexual status.54 Writing for the Court, Justice Kennedy declared that an
“inevitable inference” must be made that the Colorado law was “born of animosity toward the
class of persons affected” and concluded that the law was enacted out of a “bare . . . desire to
harm a politically unpopular group” in violation of the Equal Protection Clause of the Fourteenth
Amendment.55 Building on the themes of Romer seven years later in Lawrence v. Texas, Justice
Kennedy emphasized the “stigma” created by the Texas antisodomy statute and its implications
for the “dignity of the persons charged,” including the potential humiliation of having a charge
appear on an individual’s criminal record and having to register as a sex offender in several
states.56
A decade after Lawrence, the Court in United States v. Windsor struck down the federal Defense
of Marriage Act (DOMA), which mandated that the federal government not recognize same-sex
marriages. Justice Kennedy’s majority opinion declared that the “avowed purpose and practical
effect of” DOMA was to interfere “with the equal dignity of same-sex marriages, a dignity
conferred by the States in the exercise of their sovereign power,” by denying a host of federal
benefits to those same-sex couples who were married under the laws of their respective states.57
As a consequence, the Court viewed DOMA as an attempt by Congress to stigmatize a particular
group, because the “differentiation” of how same-sex marriage was treated under federal law
“demean[ed] the [same-sex] couple” and “humilate[d] the tens of thousands of children now
being raised by same-sex couples.”58
Two years after Windsor, Justice Kennedy authored the Court’s landmark ruling in Obergefell v.
Hodges, deciding that the “right to marry” applies with “equal force” to same-sex couples as it
does to opposite-sex couples.59 Specifically, the Obergefell Court held that the Fourteenth
Amendment requires a state to license a marriage between two people of the same sex and to
recognize a marriage between two people of the same sex when their marriage was lawfully
licensed and performed out of state.60 In so holding, the Court concluded that a denial of marital
recognition to same-sex couples ultimately “demean[ed]” and “stigma[tized]” those couples and
any children resulting from such partnerships.61 Given this conclusion, the Court held that, while
limiting marriage to opposite-sex couples may have once seemed “natural,” such a limitation was
inconsistent with the right to marriage inherent in the “liberty” of the person as protected by the
Fourteenth Amendment.62
54 See 517 U.S. 620, 624 (1996) (Kennedy, J.).
55 Id. at 634.
56 539 U.S. at 575 (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself

is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The
central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as
precedent demeans the lives of homosexual persons.”).
57 Id. at 770.
58 Id. at 772.
59 135 S. Ct. 2584, 2599 (2015) (Kennedy, J.).
60 Id. at 2608.
61 Id. at 2602.
62 Id. While the decision in Obergefell primarily rested on substantive due process grounds, the Court noted that the

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While liberty concerns informed Justice Kennedy’s assessment of government activities
addressing certain facets of life, it should be noted that these concerns were not overtly
determinative in all instances. Justice Kennedy, for example, tended to have a more restricted
view of the Fourth Amendment, as exemplified in his 2013 opinion in Maryland v. King, where,
writing on behalf of the Court, the Justice concluded that taking a cheek swab of a criminal
arrestee’s DNA was a reasonable search that did not require a warrant.63 Moreover, on matters
concerning government interference with personal property rights, Justice Kennedy joined several
opinions declining to limit the scope of the government’s power.64 Nonetheless, as discussed,
Justice Kennedy’s “capacious notion” of liberty and dignity and his skepticism toward
governmental efforts that could be viewed to interfere with those values underscore much of his
constitutional jurisprudence.65

Structural Protections of the Constitution
The structural protections of the Constitution—i.e., restraints imposed on the federal government
by the doctrines of separation of powers and federalism—also influenced Justice Kennedy’s
jurisprudence. With respect to separation of powers, even before Justice Kennedy joined the
Court, he authored as a federal appellate judge an opinion, eventually affirmed by the Supreme
Court,66 that invalided the legislative veto, a mechanism by which one or both houses of Congress
could, without enacting new legislation, override executive action.67 Writing for the U.S. Court of
Appeals for the Ninth Circuit, he identified two “principal purposes” of the separation of powers:
“preventing concentrations of power dangerous to liberty and . . . promoting governmental
efficiency.”68As a Justice on the Supreme Court, Justice Kennedy tended to emphasize the former
principle in his decisions on separation of powers. Concurring in Clinton v. New York, which
struck down the Line Item Veto Act of 1996, Justice Kennedy described the Constitution’s
separation of powers as “designed to implement a fundamental insight: concentration of power in
the hands of a single branch is a threat to liberty.”69 Accordingly, for Justice Kennedy, separation

“right of same sex couples to marry” is “derived, too,” from the Fourteenth Amendment’s Equal Protection Clause. Id.
at 2602-03. In so holding, the Court recognized a general “synergy” between the Due Process Clause and the Equal
Protection Clause, noting that just as evolving societal norms inform the liberty rights of same-sex couples, so too do
“new insights and societal understandings” about homosexuality reveal “unjustified inequality” with respect to
traditional concepts about the institution of marriage. Id. at 2603. In this sense, the Court viewed marriage laws
prohibiting the licensing and recognition of same-sex marriages as working a grave and continuing harm to same-sex
couples, serving to “disrespect and subordinate them.” Id. at 2604. As a result, the Court ruled that the Equal Protection
Clause prevents states from excluding same-sex couples from civil marriage on the same terms and conditions as
opposite-sex couples. Id. at 2604-05.
63 See 569 U.S. 435, 440-41 (2013) (Kennedy, J.).
64 See, e.g., Gonzales v. Raich, 545 U.S. 1, 9 (2005) (concluding that the federal government had the power to
criminalize the local cultivation of marijuana for medicinal purposes); Kelo v. City of New London, 545 U.S. 469, 48889 (2005) (applying a deferential standard of review to determine whether a “taking” of property was for a “public use”
within the meaning of the Fifth Amendment’s Takings Clause).
65 See Goldsmith, supra note 22.
66 See INS v. Chadha, 462 U.S. 919, 959 (1983).
67 Chadha v. INS, 634 F.2d 408, 435-36 (9th Cir. 1980) (Kennedy, J.).
68 Id. at 425.
69 Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring); see also Public Citizen v. U.S.
Dep’t of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring in judgment) (“It remains one of the most vital
functions of this Court to police with care the separation of the governing powers. That is so even when, as is the case
here, no immediate threat to liberty is apparent.”).

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of powers was a “defense against tyranny,”70 and, in this vein, the Roberts Court era witnessed
Justice Kennedy authoring or joining a number of majority opinions that invalidated on
separation-of-powers grounds intrusions on the executive,71 legislative,72 or judicial functions.73
Beyond emphasizing the importance of “horizontal” structural protections imposed by the
Constitution upon the three branches of the federal government, Justice Kennedy’s jurisprudence
also placed significant importance on the “vertical” structure created by the nation’s founding
legal document respecting the sovereign roles of federal and state governments. During the
Rehnquist and Roberts Courts, Justice Kennedy often found himself joining majority opinions
that recognized federalism-based limitations on the power of the federal government, establishing
limitations on Congress’s legislative powers74 and reaffirming protections for state sovereignty
grounded in part in the Tenth75 and Eleventh Amendments.76 At the same time, Justice Kennedy
frequently concluded that when Congress acted within its enumerated powers and did not
contravene any other federalism-based constraints on its power, Congress’s power was supreme
and therefore preempted conflicting state laws.77
70 See Loving v. United States, 517 U.S. 748, 756 (1996) (Kennedy, J.).
71 See, e.g., NLRB v. Noel Canning, 134 S. Ct. 2550, 2557 (2014) (concluding that the President lacked the power to

make appointments under the Recess Appointments Clause when the appointments occurred during a three-day recess
of the Senate); Hamdan v. Rumsfeld, 548 U.S. 557, 638 (2006) (Kennedy, J., concurring) (concurring with judgment of
the Court that presidentially created military commissions conflicted with the Uniform Code of Military Justice and
provisions of the Geneva Conventions incorporated into the code, and contending that “[t]rial by military commission
raises separation-of-powers concerns of the highest order”).
72 See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 484 (2010) (holding that dual forcause limitations on the removal of Board members contravene the Constitution’s separation of powers). While not
relying on a liberty-based rationale in his opinion, Justice Kennedy notably authored the majority opinion in Zivotofsky
ex rel. Zivotofsky v. Kerry, which struck down on separation-of-powers grounds a federal law directing the Secretary of
State, upon request, to designate “Israel” as the place of birth on the passport of a U.S. citizen who is born in Jerusalem.
See 135 S. Ct. 2076 (2015) (Kennedy, J.).
73 See, e.g., Stern v. Marshall, 564 U.S. 462 (2011) (holding that bankruptcy courts lack the constitutional authority to
adjudicate certain claims).
74 See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 558 (2012) (Roberts, C.J.) & id. at 649-50 (Scalia,
Kennedy, Thomas, & Alito, JJ., dissenting) (collectively limiting the scope of the Commerce Clause to prevent
Congress from regulating inactivity); United States v. Morrison, 529 U.S. 598, 617 (2000) (holding that Congress lacks
the authority under the Commerce Clause to regulate noneconomic intrastate activity); United States v. Lopez, 514 U.S.
549, 558 (1995) (same); see also Shelby Cty. v. Holder, 570 U.S. 529, 557 (2013) (holding that Congress cannot use its
enforcement power under the Fifteenth Amendment to impede on the equal sovereignty of the states without justifying
its actions based on current conditions); Coleman v. Court of Appeals, 566 U.S. 30, 33 (2012) (Kennedy, J.) (limiting
the scope of the Enforcement Clause of the Fourteenth Amendment such that Congress cannot enact legislation that
lacks congruence and proportionality between the injury being prevented and the means adopted to that end); Bd. of
Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 365 (2001) (same); Morrison, 529 U.S. at 626 (same); Kimel v. Fla.
Bd. of Regents, 528 U.S. 62, 82-83 (2000) (same); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank,
527 U.S. 627, 639 (1999) (same); City of Boerne v. Flores, 521 U.S. 507, 530 (1997) (Kennedy, J.) (same).
75 See, e.g., New York v. United States, 505 U.S. 144, 183 (1992) (recognizing the anticommandeering doctrine, which
prohibits Congress from issuing orders directly to the states); see also Printz v. United States, 521 U.S. 898, 935 (1997)
(extending the anticommandeering doctrine to state executive officers).
76 See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (concluding that Congress lacks power under Article
I of the Constitution to abrogate state sovereign immunity with respect to suits in federal court); see also Alden v.
Maine, 527 U.S. 706, 712 (1999) (Kennedy, J.) (holding that Congress cannot, under Article I, subject nonconsenting
states to private suits for damages in their own courts).
77 See Gregory M. Dickinson, An Empirical Study of Obstacle Preemption in the Supreme Court, 89 NEB. L. REV. 682,
692-700 & n.71 (2011) (noting Justice Kennedy’s voting habits in preemption cases, concluding that “Justice Kennedy,
is . . . markedly more conservative on the issue of preemption than in his jurisprudence generally” and “is firmly within
the conservative camp on preemption questions.”).

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Like his separation-of-power decisions, Justice Kennedy’s federalism jurisprudence was
frequently grounded in liberty-based rationales. For instance, as Justice Kennedy maintained in
his majority opinion in Bond v. United States, “[f]ederalism is more than an exercise in setting the
boundary between different institutions of government for their own integrity.”78 Instead, the
Justice viewed federalism as “secur[ing] the freedom of the individual” by allowing “those who
seek a voice in shaping the destiny of their own times without having to rely solely upon the
political processes that control a remote central power” and “by ensuring that laws enacted in
excess of delegated governmental power cannot direct or control their actions.”79 This central
tenet of Justice Kennedy’s judicial approach was captured by the joint dissent he coauthored in
NFIB v. Sebelius:
Structural protections—notably, the restraints imposed by federalism and separation of
powers—are less romantic and have less obvious a connection to personal freedom than
the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be
undervalued or even forgotten by our citizens. It should be the responsibility of the Court
to teach otherwise, to remind our people that the Framers considered structural
protections of freedom the most important ones, for which reason they alone were
embodied in the original Constitution and not left to later amendment. The fragmentation
of power produced by the structure of our Government is central to liberty, and when we
destroy it, we place liberty at peril.80

The Role of the Judiciary
Justice Kennedy’s jurisprudence was also undergirded by a relatively robust view of the role of
the Court, in which the Court, led by the Justice, began to exercise its power of judicial review
with respect to new or formerly ignored legal issues.81 Like other aspects of his judicial approach,
Justice Kennedy was not uniform in his views on judicial power. He recognized, at times, limits
to the power of the judiciary, particularly in cases interpreting the justiciability requirements of
Article III of the Constitution.82 For example, Justice Kennedy joined the Court’s 2013 opinion in
Clapper v. Amnesty International, which held that a plaintiff seeking injunctive relief from a court
first had to allege that any injury he was going to suffer as a result of the complained-of action
was “certainly impending.”83 Likewise, in matters concerning the judiciary’s role in scrutinizing
national security decisions by the political branches, Justice Kennedy tended to view the Court’s
role more minimally.84

78 564 U.S. 211, 221 (2011) (Kennedy, J.).
79 Id. at 221-22.
80 See Nat’l Fed’n of Indep. Bus., 567 U.S. at 707 (Scalia, Kennedy, Thomas, & Alito, JJ., dissenting).
81 See Goldsmith, supra note 22 (noting a “third principle” that informed Justice Kennedy’s rulings was a “robust

conception of judicial power.”); see also Jeffrey Rosen, An Enigmatic Court? Examining the Roberts Court as it Begins
Year Three: The Roberts Court & Executive Power, 35 PEPP. L. REV. 503, 508 (2008) [hereinafter Rosen-Enigmatic]
(describing Justice Kennedy as a “judicial supremacist” and the “Court’s most vocal defender of judicial power.”).
82 See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 562 (1992) (joining Court’s opinion holding plaintiffs failed to
demonstrate an injury necessary for Article III standing); but see Summers v. Earth Island Inst., 555 U.S. 488, 501
(2009) (Kennedy, J., concurring) (noting that while plaintiffs lacked Article III standing, Congress could in the future,
by identifying or conferring “some interest separate and apart from a procedural right” on the plaintiffs, “provide
redress for a concrete injury “giving rise to a case or controversy where none existed before”) (internal citations and
quotations omitted); see also Massachusetts v. EPA, 549 U.S. 497, 526 (2007) (joining majority opinion concluding
that petitioners had standing to challenge EPA’s denial of their rulemaking petition).
83 Clapper v. Amnesty Int’l USA, 568 U.S. 398, 402 (2013).
84 See, e.g., Trump v. Hawaii, No. 17-965, 2018 WL 3116337, at *25 (June 26, 2018) (Kennedy, J., concurring)

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Nonetheless, during his time on the Court, Justice Kennedy voted to strike down federal or state
laws as unconstitutional with greater regularity than most of his colleagues. Washington
University Law’s Supreme Court Database identifies Justice Kennedy, from the October 1988
term through the October 2016 term, as joining Court rulings striking down federal or state
legislation with more regularity than 12 of the 16 Justices he served with during that period
(Justices Harry Blackmun, William Brennan, Thurgood Marshall, and Byron White were Justice
Kennedy’s only colleagues from his tenure on the Court, through the October 2016 term, who
were more likely to join such opinions).85 Justice Kennedy’s willingness to invalidate federal or
state laws may be indicative of his broad conception of the Court’s role in resolving issues of
national significance.86 As Justice Kennedy declared in an interview in 2005, the Supreme Court
“make[s] more important decisions”—i.e., decisions that “will control the direction of society”—
than the “legislative branch does—precluding foreign affairs perhaps.”87
In rulings where Justice Kennedy typically provided a critical vote, the Court in recent decades
has made significant pronouncements in legal areas where it earlier had been silent or expressly
recognized the decisions of the political branches as dispositive. For instance, in the era preceding
Justice Kennedy’s appointment to the High Court, a majority of the Court had concluded that the
“political processes” (i.e., discretionary actions taken by Congress and the President), and not the
Court, would be the primary means to enforce federalism-based limits on Congress’s powers.88
However, with the Rehnquist Court came a shift in federalism jurisprudence, and the judiciary
began to police the limits of Congress’s powers vis-à-vis the states.89 Justice Kennedy’s
concurrence in United States v. Lopez90 included a robust defense for this shift in approach:
[T]he absence of structural mechanisms to require those officials to undertake [the]
principled task [of “maintaining the federal balance”], and the momentary political
(observing that “[t]here are numerous instances in which the statements and actions of Government officials are not
subject to judicial scrutiny or intervention”); Ziglar v. Abbasi, 137 S. Ct. 1843, 1861(2017) (Kennedy, J.) (stating that
“[n]ational-security policy is the prerogative of the Congress and President,” requiring judicial deference to national
security determinations); but see Boumediene v. Bush, 553 U.S. 723, 755 (2008) (Kennedy, J.) (concluding that
“fundamental separation-of-powers principles” required judicial examination of whether Guantanamo Bay is under the
de facto control of the United States).
85 See WASHINGTON UNIVERSITY LAW, SUPREME COURT DATABASE (last accessed July 5, 2018),
http://scdb.wustl.edu/analysisOverview.php. A search was conducted using Washington University Law’s Supreme
Court Database for cases from October Term 1987 through October Term 2016 in which the Court struck down a
federal, state, or local law as unconstitutional and whether a particular Justice voted with the majority in such cases.
(The database has not yet been updated to reflect the October 2017 term.) From the time Justice Kennedy joined the
Court in February 1988, the Court struck down laws in 194 cases. Justice Kennedy was part of the deciding majority in
143 of those cases. Other Justices who joined rulings that struck down federal or state laws included the following:
Souter (88); Stevens (96); Ginsburg (83); Scalia (90); O’Connor (83); Breyer (73); Rehnquist (63); Thomas (59);
Roberts (32); Blackmun (36); Sotomayor (23); White (31); Alito (18); Kagan (18); Marshall (27); and Brennan (24).
Averaging those numbers per year served on the Court results in the following: Brennan (8 cases/term); Marshall (6.8
cases/term); White (5.2 cases/term); Blackmun (5.1 cases/term); Kennedy (4.8 cases/term); Souter (4.6 cases/term);
O’Connor (4.6 cases/term); Stevens (4.2 cases/term); Rehnquist (3.5 cases/term); Ginsburg (3.5 cases/term); Breyer
(3.2 cases/term); Scalia (3.1 cases/term); Sotomayor (2.9 cases/term); Roberts (2.7 cases/term); Kagan (2.6 cases/term);
Thomas (2.3 cases/term); and Alito (1.6 cases/term).
86 See Rosen-Enigmatic, supra note 81, at 508 (describing Justice Kennedy’s willingness to strike down legislation as
indicative of his view of judicial power).
87 See Hon. Anthony M. Kennedy, The Essential Right to Human Dignity, ACADEMY OF ACHIEVEMENT, (June 3, 2005),
http://www.achievement.org/achiever/anthony-m-kennedy/#interview.
88 Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 556 (1985).
89 See supra notes 75-76.
90 See United States v. Lopez, 514 U.S. 549, 578 (1995) (Kennedy, J., concurring).

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convenience often attendant upon their failure to do so, argue against a complete
renunciation of the judicial role. Although it is the obligation of all officers of the
Government to respect the constitutional design, . . . the federal balance is too essential a
part of our constitutional structure and plays too vital a role in securing freedom for us to
admit inability to intervene when one or the other level of Government has tipped the scales
too far.91

Another example of how the Court’s role ascended during Justice Kennedy’s tenure concerned
the Court’s approach toward laws that discriminated against persons engaged in same-sex
relationships. The decades that preceded Justice Kennedy’s appointment saw the Court upholding
laws criminalizing same-sex sodomy92 and summarily affirming rulings that rejected a
constitutional right to same-sex marriage.93 However, as discussed, Justice Kennedy’s 1996
opinion in Romer v. Evans94 ushered in a new era in which the Court began to scrutinize laws that
denied certain rights to persons in same-sex relationships. In Lawrence, the Court reversed its
earlier ruling with respect to the criminalization of same-sex sodomy,95 and 12 years later, Justice
Kennedy’s opinion for the Court in Obergefell recognized a constitutional right for same-sex
couples to marry,96 marking a stark contrast to the Court’s approach to such matters in the
decades preceding Justice Kennedy joining the Court.97
More broadly, Justice Kennedy’s jurisprudence reaffirmed the role of the Court as the final
expositor of the meaning of the Constitution.98 For example, in City of Boerne v. Flores, which
invalidated the Religious Freedom Restoration Act of 1993’s application to state governments,
Justice Kennedy’s majority opinion rejected a reading of older precedent from the Warren Court
era that implied that Congress, through enacting legislation under the Enforcement Clause of the
Fourteenth Amendment, could expand upon the rights the Court previously had recognized the
amendment to protect.99 For Justice Kennedy, Congress’s power under the Fourteenth
Amendment was limited to “determine whether and what legislation is needed to secure the
guarantees of the Fourteenth Amendment,” but the Court retained the power to determine the
meaning of the Constitution and its precedents. The Supreme Court’s interpretation of the
Constitution ultimately “must control,”100 rather than the interpretation advanced by another
branch of government.
Justice Kennedy’s view of judicial supremacy with respect to constitutional interpretation was not
limited to clashes between the legislative and judicial branches. For example, in United States v.
Windsor, Justice Kennedy’s majority opinion rejected the argument that the Court lacked
jurisdiction to adjudicate an appeal when both the plaintiff and executive branch defendant agreed

91 Id. at 577-78.
92 See Bowers v. Hardwick, 478 U.S. 186, 196 (1986).
93 See Baker v. Nelson, 409 U.S. 810 (1972).
94 See 517 U.S. 620, 634 (1996) (Kennedy, J.).
95 See 539 U.S. 558, 578 (2003) (Kennedy, J.).
96 See 135 S. Ct. 2584, 2599 (2015) (Kennedy, J.).
97 See Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 349-50 (7th Cir. 2017) (en banc) (discussing the evolution

of the Court’s jurisprudence with respect to laws that burden the liberty of same-sex couples).
98 For a discussion about the debate over the Court’s role in interpreting the Constitution, see CRS Report R44729,
Constitutional Authority Statements and the Powers of Congress: An Overview, by (na me redacted)
.
99 See 521 U.S. 507, 527-28 (1997) (rejecting reading Katzenbach v. Morgan, 384 U.S. 641 (1966) to “give Congress
the power to interpret the Constitution.”).
100 Id. at 536.

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as to the ultimate outcome of the case (i.e., that DOMA was unconstitutional).101 The Windsor
Court believed that, if judicial review of the legality of a measure could be circumvented by the
executive branch conceding a plaintiff’s claim that a federal statute was unlawful, “[t]his would
undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is
alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial
department to say what the law is.”102 In a similar vein, Justice Kennedy, in concluding on behalf
of the Court in Boumediene v. Bush that enemy belligerents detained at the U.S. Naval Base in
Guantanamo Bay, Cuba, were entitled to seek writs of habeas corpus, rejected the executive
branch’s argument that the constitutional writ of habeas could never extend to noncitizens being
held outside of U.S. sovereign territory, regardless of the degree of control the United States
exercised over the location.103 For Justice Kennedy, the Constitution “cannot be contracted away”
through a lease between the U.S. and Cuban governments.104 The political branches lacked the
power to “say ‘what the law is’” and could not “switch the Constitution on or off at will.”105 As a
consequence, while Justice Kennedy may have occasionally recognized limits to the role of the
Court in resolving legal disputes, opinions like Boumediene placed the Court, at least in the view
of one legal commentator, at the “apex of power in the constitutional structure.”106

Justice Kennedy’s Decisive Votes in Roberts CourtEra Cases
The principles that undergirded Justice Kennedy’s judicial philosophy often cut across
ideological lines, as his views on liberty, the structural Constitution, and the power of the Court
resulted in the Justice taking sometimes idiosyncratic approaches to a given case.107 As a result,
Justice Kennedy’s approach to the law placed him in the middle of the Roberts Court, with the
Justice not necessarily voting in tandem with the blocs of Justices that commentators have labeled
to be “liberal” or “conservative.”108 Justice Kennedy had a significant influence on the Court,
sometimes because the substance of his opinions was jurisprudentially significant, as in the areas
of free speech and substantive due process, and sometimes by means of providing a fifth vote in
closely divided cases.
The following subsections broadly note critical areas of law in which Justice Kennedy was
particularly influential on the Roberts Court. The subsections briefly highlight Justice Kennedy’s
approach to a given area of law, noting the key cases that help explain the Justice’s views on a
given legal issue. Throughout, the subsections, by noting Justice Kennedy’s influence on a

101 See 570 U.S. 744, 762 (2013) (Kennedy, J.).
102 Id. (internal quotations and citations omitted).
103 See 553 U.S. 723, 755 (2008) (Kennedy, J.).
104

Id. at 765 (quoting Marbury v. Madison, 5 U.S. (Cranch) 137, 177 (1803)).

105 Id.
106 See Noah Feldman, Justice Kennedy’s Legacy is the Dignity He Bestowed, BLOOMBERG OPINION (June 27, 2018,

3:24 PM), https://www.bloomberg.com/view/articles/2018-06-27/anthony-kennedy-retirement-his-legacy-is-dignityhe-created.
107 See supra notes 7-17 and accompanying text.
108 E.g., Gregory E. Maggs, Justice Kennedy’s Use of Sources of the Original Meaning of the Constitution, 44
MCGEORGE L. REV. 77, 79 (2013) (“Scholars and commentators often describe Justice Kennedy as the ‘swing vote’ on
the Supreme Court . . . As the swing vote, Justice Kennedy belongs to neither block, but ‘swings’ between them . . .”).

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particular area of law, signal how the trajectory of the Court’s jurisprudence in that area may
change when Justice Kennedy retires from active service on the Court.

Administrative Law
Justice Kennedy was less influential on administrative law matters than he was in other areas of
the law, though he did, at times, express the opinion that courts should carefully police the power
of the administrative state based on separation-of-powers concerns. For instance, in a concurring
opinion in FCC v. Fox Television Stations, Inc., he noted the unique “role and position” of
administrative agencies in the federal government, and stated that “if agencies were permitted
unbridled discretion, their actions might violate important constitutional principles of separation
of powers and checks and balances.”109 To address this danger, he argued that courts should
carefully apply the various doctrines limiting agencies’ power.110
Nonetheless, like other legal issues he approached while on the Court, Justice Kennedy’s votes in
administrative law cases tended to place him in the middle of the Roberts Court. One of the
biggest flashpoints in administrative law is a judge’s stance on the doctrines governing judicial
deference to agencies’ interpretations of statutes, and Chevron deference in particular.111 Chevron
deference counsels that if a statute is ambiguous, courts should defer to certain reasonable agency
constructions of the statute.112 Justice Kennedy’s track record under Chevron was relatively
mixed overall: he provided the Roberts Court’s fifth vote in decisions deferring to an agency’s
interpretation under Chevron in four cases113 and provided the fifth vote to reject deference in at
least six cases.114 Moreover, Justice Kennedy authored the Court’s 2013 opinion in Decker v.
Northwest Environmental Defense Center,115 relying, over Justice Scalia’s dissent,116 on the Auer
doctrine, which affords deference toward an agency’s interpretation of its own regulations.117

109 556 U.S. 502, 536 (2009) (Kennedy, J., concurring).
110 See id. at 536-37.
111 E.g., Gillian E. Metzger, The Supreme Court 2016 Term, Foreword: 1930s Redux: The Administrative State Under

Siege, 131 HARV. L. REV. 1, 93 (2017).
112 Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842-43 (1984). See generally CRS Report R44954,
Chevron Deference: A Primer, by (name redacted) and (name redacted)
.
113 Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 224 (2009); Nat’l Ass’n of Home Builders v. Defs. of Wildlife,
551 U.S. 644, 666 (2007); Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 100 (2007); Watters v.
Wachovia Bank, N.A., 550 U.S. 1 (2007). See also Dada v. Mukasey, 554 U.S. 1, 20 (2008) (Kennedy, J.) (holding
agency interpretation was entitled to “respectful consideration”). This list was created by comparing the lists of
decisions in which Justice Kennedy cast the deciding vote, see infra Appendix, to the lists of decisions in which Justice
Kennedy voted in favor of and against agency interpretations that were compiled by Jack M. Beermann, Chevron at the
Roberts Court: Still Failing After All These Years, 83 FORDHAM L. REV. 731, 737-38 (2014). Opinions issued after the
date of the article’s publication in which Justice Kennedy cast the deciding vote were independently reviewed for
mentions of Chevron.
114 Wisconsin Cent. Ltd. v. United States, No. 17-530, 2018 WL 3058014, at *6 (U.S. June 21, 2018); Epic Sys. Corp.
v. Lewis, 138 S. Ct. 1612, 1629–30 (2018); SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1358–59 (2018); Michigan v.
EPA, 135 S. Ct. 2699, 2708 (2015); Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2203 (2014) (plurality opinion);
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 642 n.11 (2007). See also Rapanos v. United States, 547 U.S.
715, 782-783 (Kennedy, J., concurring) (concluding agency’s interpretation of statute might be reasonable under some
circumstances, but concluding that a remand for reconsideration by the lower courts was necessary).
115 568 U.S. 597 (2013).
116 Id. at 616 (Scalia, J., dissenting).
117 Id. at 613-14 (majority opinion).

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However, in the Court’s most recent term, less than a week before Justice Kennedy announced
that he would be retiring, Justice Kennedy authored an opinion in which he called for the Court to
“reconsider” Chevron.118 Echoing the separation-of powers concerns he had earlier voiced in
opinions such as FCC v. Fox Television Stations, Inc.,119 Justice Kennedy expressed concern that
lower courts had sometimes afforded agency interpretations “reflexive deference,” abdicating
“the Judiciary’s proper role in interpreting federal statutes.”120 He suggested that this abdication
violated “constitutional separation-of-powers principles.”121 Accordingly, with a number of
Justices arguing for reexaminations of both the Chevron122 and Auer123 doctrines, Justice
Kennedy’s successor could have an important role to play regarding the future of administrative
law and how courts scrutinize an agency’s legal conclusions.124

Business Law
Justice Kennedy cast numerous decisive votes in business law cases throughout his tenure on the
Roberts Court, including in cases involving antitrust,125 business taxation,126 bankruptcy and debt
collection,127 intellectual property,128 securities,129 civil tort liability,130 class action litigation,131
and employment discrimination.132 While it may be difficult to observe discernible trends across
this diverse group of legal matters, at least two trends in Justice Kennedy’s business law
jurisprudence during the Roberts Court era are readily apparent. First, in a string of closely
divided cases presenting the issue of whether businesses can require plaintiffs to submit their
disputes to binding arbitration instead of litigating their disputes in court, Justice Kennedy
118 Pereira v. Sessions, No. 17-459, 2018 WL 3058276, at *14 (U.S. June 21, 2018) (Kennedy, J., concurring).
119 556 U.S. 502, 536 (2009) (Kennedy, J., concurring).
120 Pereira, 2018 WL 3058276 at *14.
121 Id.
122 See, e.g., Michigan v. EPA, 135 S. Ct. 2699, 2712 (2015) (Thomas, J., concurring); Gutierrez-Brizuela v. Lynch,

834 F.3d 1142, 1158 (10th Cir. 2016) (Gorsuch, J., concurring).
123 See, e.g., Garco Constr., Inc. v. Speer, 138 S. Ct. 1052, 1052 (2018) (Thomas, J., dissenting from denial of
certiorari).
124 See, e.g., Bridget C.E. Dooling, Justice Kennedy’s parting swipe against judges deferring to administrative
agencies, THE HILL (July 9, 2018, 6:30 AM), http://thehill.com/opinion/judiciary/396020-justice-kennedys-partingswipe-against-judges-deferring-to-administrative; Noah Feldman, A Power Grab of Sorts, Buried in a Supreme Court
Decision, BLOOMBERG OPINION (June 24, 2018, 10:00 AM), https://www.bloomberg.com/view/articles/2018-0624/call-to-end-chevron-doctrine-is-a-justice-kennedy-power-grab; Joshua Matz, The Imminent Demise of Chevron
Deference?, TAKE CARE (June 21, 2018), https://takecareblog.com/blog/the-imminent-demise-of-chevron-deference.
125 See, e.g., Ohio v. Am. Express Co., No. 16-1454, 2018 WL 3096305, at *6 (June 25, 2018); FTC v. Actavis, Inc.,
570 U.S. 136, 140-60 (2013); Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 881-908 (2007)
(Kennedy, J.).
126 See, e.g., South Dakota v. Wayfair, Inc., No. 17-494, 2018 WL 3058015, at *4-18 (June 21, 2018) (Kennedy, J.).
127 See, e.g., Midland Funding, LLC v. Johnson, 137 S. Ct. 1407, 1410-16 (2017); Stern v. Marshall, 564 U.S. 462,
468-503 (2011).
128
See, e.g., SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1352–60 (2018).
129 See, e.g., Cal. Pub. Emps.’ Ret. Sys. v. ANZ Sec., Inc., 137 S. Ct. 2042, 2047-55 (2017) (Kennedy, J.); Janus
Capital Grp., Inc. v. First Derivative Traders, 564 U.S. 135, 137-48 (2011); Stoneridge Inv. Partners, LLC v. Sci.Atlanta, Inc., 552 U.S. 148, 152-67 (2008) (Kennedy, J.).
130 See, e.g., Jesner v. Arab Bank, 138 S. Ct. 1386, 1393-1408 (2018) (Kennedy, J.); Philip Morris USA v. Williams,
549 U.S. 346, 349-58 (2007).
131 See, e.g., Comcast Corp. v. Behrend, 569 U.S. 27, 29-38 (2013); Wal-Mart Stores v. Dukes, 564 U.S. 338, 342-67
(2011).
132 See, e.g., Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 169-80 (2009).

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frequently was part of Court majorities ruling that the claims were arbitrable.133 Second, Justice
Kennedy cast deciding votes in several cases holding that federal law preempted certain state tort
causes of action, thereby limiting the circumstances in which plaintiffs could hold businesses
liable for conduct that would otherwise violate state law.134 Justice Kennedy’s deciding vote in
such cases may have helped solidify the Roberts Court’s reputation as being particularly probusiness,135 prompting the question of whether Justice Kennedy’s departure from the Court will
change the Roberts Court’s approach to business matters.136

Civil Rights
While serving on the Roberts Court, Justice Kennedy was a critical vote in civil rights cases,
addressing both constitutional and statutory matters relating to a broad range of subjects,
including voting rights,137 education,138 and labor and employment.139 For instance, in the context
of labor and employment law, Justice Kennedy sided with the majority in a number of closely
divided rulings adopting a narrower interpretation of Title VII of the Civil Rights Act of 1964
relative to the approach favored by the dissenting Justices on the Court.140 Justice Kennedy joined
the majority opinion in Ledbetter v. Goodyear Tire, which held that a female employee’s
complaint of pay discrimination was time barred.141 In a ruling later abrogated by Congress,142 the
majority reasoned that the statutory period for bringing such a claim began with the defendant’s
original discriminatory pay decision, and thus concluded that each subsequent paycheck that
followed did not reset the statute of limitations.143

133 See, e.g., Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1619-32 (2018); Am. Express Co. v. Italian Colors Rest., 570

U.S. 228, 231-39 (2013); AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 336-52 (2011); Rent-A-Ctr., W., Inc. v.
Jackson, 561 U.S. 63, 65-76 (2010); 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 251-74 (2009).
134 See, e.g., Mut. Pharm. Co. v. Bartlett, 570 U.S. 472, 475-93 (2013); PLIVA, Inc. v. Mensing, 564 U.S. 604, 608-20,
623-26 (2011). But see Altria Grp., Inc. v. Good, 555 U.S. 70, 72-91 (2008).
135 See, e.g., Lee Epstein, William M. Landes & Hon. Richard A. Posner, How Business Fares in the Supreme Court,
97 MINN. L. REV. 1431, 1472 (2013) (“Whether measured by decisions or Justices’ votes, a plunge in warmth toward
business during the 1960s (the heyday of the Warren Court) was quickly reversed; and the Roberts Court is much
friendlier to business than either the Burger or Rehnquist Courts, which preceded it, were.”).
136 See Tucker Higgins, Anthony Kennedy's Retirement Threatens to Upend the Supreme Court on Social Issues, but
Big Business will Hardly Notice, CNBC (June 29, 2018, 1:15 PM), https://www.cnbc.com/2018/06/28/effect-of-anthony-kennedys-retirement-on-business.html (discussing Justice Kennedy’s legacy on business law issues and noting
the various business law matters that could be before the Court in the upcoming term).
137 See, e.g., Abbott v. Perez, Nos. 17–586, 17–626., 2018 WL 3096311, at *4-24 (June 25, 2018); Ala. Legislative
Black Caucus v. Alabama, 135 S. Ct. 1257, 1262-74 (2015); League of United Latin Am. Citizens v. Perry, 548 U.S.
399, 409-47 (2006) (Kennedy, J.).
138 Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198, 2204-15 (2016) (Kennedy, J.); Parents Involved in Cmty. Schs. v.
Seattle Sch. Dist. No. 1, 551 U.S. 701, 782-98 (2007) (Kennedy, J., concurring in part and concurring in the judgment).
139 See, e.g., Vance v. Ball State Univ., 570 U.S. 421, 423-50 (2013); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 16980 (2009); Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 621-43 (2007).
140 See, e.g., Vance, 570 U.S. at 423-50 (holding that an employee is a “supervisor” within the meaning of Title VII
only if he possesses the power to undertake tangible employment actions against the victim); Univ. of Texas Sw. Med.
Ctr. v. Nassar, 570 U.S. 338, 342-63 (2013) (Kennedy, J.) (concluding that a plaintiff asserting a retaliation claim under
Title VII must demonstrate but-for causation).
141 Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 621-43 (2007) (holding that only discriminatory pay
decisions triggered the time limit for filing a charge with Equal Employment Opportunity Commission).
142 See Lilly Ledbetter Fair Pay Act of 2009, P.L. 111-2, 123 Stat. 5.
143 Ledbetter, 550 U.S. at 621-43.

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In other contexts, Justice Kennedy took a broader view regarding the statutory and constitutional
protections afforded to certain marginalized groups. Most notably, as discussed,144 Justice
Kennedy authored four major opinions that recognized constitutional protections against statesponsored discrimination based on sexual orientation.145 Justice Kennedy also wrote the Court’s
opinion in Texas Department of Housing & Community Affairs v. Inclusive Communities Project,
Inc., in which a bare majority held that plaintiffs could, under the Fair Housing Act, assert
disparate impact claims—that is, claims based not on intentional discrimination, but instead on a
particular practice that adversely affects a protected group.146
Justice Kennedy was particularly consequential in Roberts Court’s decisions concerning raceconscious education policies. For example, Justice Kennedy concurred in the judgment rendered
in Parents Involved in Community Schools v. Seattle School District No. 1,147 which invalidated
school assignment plans that partially relied on race to determine which schools children in the
districts could attend.148 At the same time, however, Justice Kennedy wrote a separate opinion in
Parents Involved expressing his view that school districts should nonetheless be “free to devise
race-conscious measures” to promote diversity as long as those measures “address the problem in
a general way and without treating each student in different fashion solely on the basis of a
systematic, individual typing by race.”149 The Justice then authored the Court’s latest
pronouncement on affirmative action two terms ago in Fisher v. University of Texas at Austin,
which rejected a white applicant’s constitutional challenge to a state university’s race-conscious
admissions program.150
Given Justice Kennedy’s deciding vote on many of the cases mentioned above, his replacement
could have an especially influential role in a host of civil rights matters.151

Criminal Law and Procedure
While Justice Kennedy was perhaps less consequential for the Court’s jurisprudence in the area of
criminal law and procedure than in other areas, he nonetheless provided the deciding vote in a
number of cases concerning criminal law and procedure.152 In the realm of the Fourth
Amendment, which provides protection from unreasonable searches and seizures,153 Justice
Kennedy often came down on the side of the government, upholding searches and seizures or
otherwise allowing the admission of evidence.154 In a number of cases, Justice Kennedy
144 See infra “Substantive Due Process and Fundamental Rights.”
145 See Obergefell v. Hodges, 135 S. Ct. 2584, 2593-2608 (2015) (Kennedy, J.); United States v. Windsor, 570 U.S.

744, 749-75 (2013) (Kennedy, J.); Lawrence v. Texas, 539 U.S. 558, 562-79 (2003) (Kennedy, J.); Romer v. Evans,
517 U.S. 620, 623-36 (1996) (Kennedy, J.).
146 135 S. Ct. 2507, 2513-26 (2015) (Kennedy, J.).
147 551 U.S. 701, 782 (2007) (Kennedy, J., concurring in part and concurring in the judgment).
148 Id. at 748 (Roberts, C.J.) (“The way to stop discrimination on the basis of race is to stop discriminating on the basis
of race.”).
149
Id. at 788-89 (Kennedy, J., concurring in part and concurring in the judgment).
150 136 S. Ct. 2198, 2205-15 (2016) (Kennedy, J.).
151 See Braden Campbell, Post-Kennedy Court Likely To Take Narrow View Of Title VII, Law360 (June 28, 2018, 10:31
PM), https://www.law360.com/articles/1058583/post-kennedy-court-likely-to-take-narrow-view-of-title-vii.
152 See infra “Table A-1, Justice Anthony Kennedy as a “Swing” Vote: Constitutional Law Decisions.”
153 U.S. CONST. amend. IV.
154 See, e.g., Utah v. Strieff, 136 S. Ct. 2056, 2059 (2016); Navarette v. California, 134 S. Ct. 1683, 1686 (2014);
Maryland v. King, 569 U.S. 435, 448 (2013) (Kennedy, J.); Florence v. Bd. of Chosen Freeholders of Cty. of
Burlington, 566 U.S. 318, 323 (2012) (Kennedy, J.); Herring v. United States, 555 U.S. 135, 137 (2009); Hudson v.

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suggested that the Court should leave room for local governments to develop their own
procedures governing searches, giving local authorities discretion to strike the proper balance
between preventing unreasonable searches while still allowing law enforcement officers to
conduct effective searches in the interest of public security.155 The Justice was similarly
deferential to the government in the context of Miranda warnings,156 citing police officers’ need
for discretion to make “difficult decisions” in the face of ambiguity.157 In line with his tendency to
side with the government in many criminal procedure disputes before the Court, Justice Kennedy
was in dissent in a number of the Court’s recent rulings taking more expansive views of the
Fourth Amendment,158 the Sixth Amendment’s Confrontation Clause,159 and the Sixth
Amendment’s right to a jury trial.160
While often taking a position favorable to the government in criminal law cases, Justice Kennedy
joined or authored Court rulings in several close decisions favorable to criminal defendants’
ability to raise right-to-counsel claims.161 Perhaps most notably, Justice Kennedy authored a pair
of 2012 opinions on behalf of a closely divided Court, Missouri v. Frye and Lafler v. Cooper, that
held that “as a general rule, defense counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be favorable to the accused,”162 and
held that a failure to abide by that rule might undermine even a subsequent prosecution before a
jury.163

Michigan, 547 U.S. 586, 594 (2006). But see Missouri v. McNeely, 569 U.S. 141, 144 (2013); Georgia v. Randolph,
547 U.S. 103, 106 (2006).
155 See King, 569 U.S. at 447-48; Hudson, 547 U.S. at 603; Florence, 566 U.S. at 334; McNeely, 569 U.S. at 166
(Kennedy, J., concurring).
156 See Salinas v. Texas, 570 U.S. 178, 186 (2013); Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010) (Kennedy, J.).
Cf. JDB v. North Carolina, 564 U.S. 261, 271 (2011).
157 Berghuis, 560 U.S. at 382.
158 See, e.g., Carpenter v. United States, No. 16-402, 2018 WL 3073916, at *16 (June 22, 2018) (Kennedy, J.,
dissenting) (maintaining that the collection of a criminal defendant’s cell site location from his wireless carrier did not
constitute a search under the Fourth Amendment); Florida v. Jardines, 569 U.S. 1, 16 (2013) (Alito, J., dissenting)
(joining Justice Alito’s dissent arguing that using a drug-sniffing dog on a homeowner's porch to investigate the
contents of the home is not a search).
159 See, e.g., Bullcoming v. New Mexico, 564 U.S. 647, 674 (2011) (Kennedy, J., dissenting) (arguing that the Sixth
Amendment permitted the introduction of a forensic lab report containing a testimonial certification through the incourt testimony of an analyst who did not sign the document or personally observe the test); Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 330 (2009) (Kennedy, J., dissenting) (maintaining that a state forensic analyst's
laboratory report prepared for use in a criminal prosecution is not “testimonial” evidence for purposes of the
Confrontation Clause).
160 See, e.g., Alleyne v. United States, 570 U.S. 99, 124 (2013) (Roberts, CJ, dissenting) (joining Chief Justice Robert’s
dissent concluding that the determination of the factual predicate for a mandatory minimum increase did not need to be
submitted to a jury); Cunningham v. California, 549 U.S. 270, 295 (2007) (Kennedy, J., dissenting) (noting his
disagreement with the “wrong and unfortunate direction” of the case law following the Court’s rulings in United States
v. Booker, 543 U.S. 220 (2005), Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S.
466 (2000)).
161 See McWilliams v. Dunn, 137 S. Ct. 1790, 1793 (2017); Trevino v. Thaler, 569 U.S. 413, 417 (2013); Lafler v.
Cooper, 566 U.S. 156, 164 (2012) (Kennedy, J.); Missouri v. Frye, 566 U.S. 134, 145 (2012) (Kennedy, J.); Sears v.
Upton, 561 U.S. 945, 946 (2010); Wellons v. Hall, 558 U.S. 220, 226 (2010). But see Davis v. Ayala, 135 S. Ct. 2187,
2198 (2015); Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Dist. Atty’s Office for the Third Judicial Dist. v. Osborne,
557 U.S. 52, 69 (2009); Montejo v. Louisiana, 556 U.S. 778, 797 (2009); Fry v. Pliler, 551 U.S. 112, 121-22 (2007);
Schriro v. Landrigan, 550 U.S. 465, 469 (2007).
162 Frye, 566 U.S. at 145.
163 Cooper, 566 U.S. at 168.

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Justice Kennedy was arguably less often a “swing vote” in criminal law matters, regularly siding
with the government, particularly in the area of the Fourth Amendment.164 However, he was still
decisive to the outcome of a number of criminal law cases, and some commentators have argued
that his successor will have an important role to play in resolving cases dealing with privacy and
the scope of the Fourth Amendment’s protections in light of evolving technology.165

Cruel and Unusual Punishment
Justice Kennedy cast numerous decisive votes in closely divided Eighth Amendment cases,
including death penalty cases.166 In several of those cases, Justice Kennedy authored majority
opinions granting relief to petitioners either based on their characteristics or those of the crimes
they committed. For instance, in Kennedy v. Louisiana, Justice Kennedy authored the majority
opinion ruling that the Eighth Amendment prohibits the death penalty as a punishment for the
rape of a child where the crime does not result—and was not intended to result—in the victim’s
death.167 Similarly, in Hall v. Florida, Justice Kennedy, building upon the Court’s earlier ruling in
Atkins v. Virginia,168 authored an opinion ruling that Florida’s death penalty regime created an
unconstitutional risk of executing persons with intellectual disabilities.169 Justice Kennedy also
wrote the Court’s 5-4 opinion in Roper v. Simmons, which held that the Eighth Amendment
forbids executing defendants who were under 18 years of age at the time of their capital crimes,170
and he joined the 5-4 opinion in Miller v. Alabama, which held that the Eighth Amendment
prohibits mandatory life imprisonment for juveniles.171
However, Justice Kennedy also cast decisive votes against petitioners in a variety of Eighth
Amendment cases,172 especially in cases presenting broader efforts to challenge the death penalty.
For example, in Glossip v. Gross, the Court, in a 5-4 opinion with Justice Kennedy in the
164 See, e.g., Michael A. McCall & Madhavi M. McCall, Quantifying the Contours of Power: Chief Justice Roberts &

Justice Kennedy in Criminal Justice Cases, 37 PACE L. REV. 115, 126 (2016); Allison Grande, Justice Kennedy’s
Departure Leaves Privacy Limits Up In Air, LAW360 (June 29, 2018, 11:04 PM),
https://www.law360.com/articles/1058913/justice-kennedy-s-departure-leaves-privacy-limits-up-in-air.
165 See Grande, supra note 164; Louise Matsakis, Anthony Kennedy’s Retirement May Have Huge Consequence for
Privacy, WIRED (June 27, 2018, 6:06 PM), https://www.wired.com/story/anthony-kennedy-retirement-consequencesfor-privacy.
166 See, e.g., Moore v. Texas, 137 S. Ct. 1039, 1044-53 (2017); Brumfield v. Cain, 135 S. Ct. 2269, 2273-83 (2015);
Brewer v. Quarterman, 550 U.S. 286, 288-96 (2007); Abdul-Kabir v. Quarterman, 550 U.S. 233, 237-65 (2007); Panetti
v. Quarterman, 551 U.S. 930, 934 (2007) (Kennedy, J.); Smith v. Texas, 550 U.S. 297, 299-316 (2007) (Kennedy, J.);
House v. Bell, 547 U.S. 518, 521-55 (2006) (Kennedy, J.).
167 554 U.S. 407, 412-47 (2008) (Kennedy, J.).
168 536 U.S. 304, 306-21 (2002).
169 134 S. Ct. 1986, 1990-2001 (2014) (Kennedy, J.). See also Moore, 137 S. Ct. at 1044-53 (concluding that a state’s
legal standard for determining whether capital defendant was intellectually disabled did not comport with the Eighth
Amendment).
170 543 U.S. 551, 555-79 (2005) (Kennedy, J.).
171 567 U.S. 460, 465-89 (2012).
172 See, e.g., Davila v. Davis, 137 S. Ct. 2058, 2062-70 (2017) (holding that federal habeas court could not hear
petitioner’s challenge to death sentence); Garcia v. Texas, 564 U.S. 940, 940-43 (2011) (holding that capital defendant
convicted of capital murder was not entitled to stay of execution notwithstanding a ruling from the International Court
of Justice); Medellin v. Texas, 554 U.S. 759, 759-60 (2008) (same); Lawrence v. Florida, 549 U.S. 327, 329-37 (2007)
(concluding that capital defendant’s habeas corpus petition was untimely); Ayers v. Belmontes, 549 U.S. 7, 9-24 (2006)
(Kennedy, J.) (determining that jury instructions in capital murder case did not contravene constitutional right to
present mitigating evidence in capital sentencing proceedings); Brown v. Sanders, 546 U.S. 212, 214-25 (2006) (ruling
that capital murder defendant was not entitled to habeas corpus relief).

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majority, rejected the petitioner’s claim that Oklahoma’s three-drug lethal injection protocol
violated the Eighth Amendment by creating an unacceptable risk of severe pain.173 Likewise, in
Kansas v. Marsh, Justice Kennedy joined a 5-4 opinion concluding that Kansas’s death penalty
regime did not offend the Eighth Amendment.174 As a result, Justice Kennedy’s death penalty
jurisprudence placed him squarely in the middle of the Roberts Court, making this area of law a
critical one that is likely to be influenced by whoever replaces the Justice. 175

Environmental Law
Justice Kennedy authored or joined several consequential opinions in closely divided
environmental law cases during his time on the Roberts Court.176 For example, Justice Kennedy
wrote an influential opinion concurring in the judgment in Rapanos v. United States, which
concerned the proper interpretation of the term “waters of the United States” for the purposes of
the Clean Water Act.177 Justice Kennedy’s concurrence became the controlling opinion for many
lower courts, thereby defining the scope of the federal government’s authority to regulate certain
bodies of water and wetlands connected to them.178 Justice Kennedy also joined the Court’s 5-4
opinion in Massachusetts v. EPA, a case that some scholars have characterized as “one of the most
significant cases in the history of federal environmental litigation.”179 The Massachusetts Court
held (1) that the State of Massachusetts had standing to challenge the Environmental Protection
Agency’s alleged failure to adequately regulate greenhouse gas;180 and (2) that greenhouse gases
fit within the Clean Air Act’s definition of “air pollutant” and therefore fell within the EPA’s
regulatory authority.181 The Court’s ruling in Massachusetts not only expanded the universe of
environmental law challenges that federal courts had authority to adjudicate, but it also directly
influenced the EPA to establish a new program to regulate greenhouse gases.182
Nonetheless, Justice Kennedy also cast several critical votes that did not necessarily align him
with those seeking greater legal protections for the environment. For example, Justice Kennedy
joined the 5-4 opinion in Summers v. Earth Island Institute, in which the Court ruled that a group
of environmental organizations lacked standing to challenge certain federal regulations.183
Additionally, Justice Kennedy joined the Court’s 5-4 opinion in Michigan v. EPA, which held that
173 135 S. Ct. 2726, 2731-46 (2015).
174 548 U.S. 163, 165-81 (2006).
175 See Carol Streiker and Jordan Streiker, Justice Kennedy: He Swung left on the Death Penalty but Declined to Swing

for the Fences, SCOTUSBLOG (Jul. 2, 2018, 11:27 AM), http://www.scotusblog.com/2018/07/justice-kennedy-heswung-left-on-the-death-penalty-but-declined-to-swing-for-the-fences/.
176 See, e.g., Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 649-73 (2007) (concluding that the
Environmental Protection Agency permissibly transferred certain permitting powers to state authorities).
177 547 U.S. 715, 759-87 (2006) (Kennedy, J., concurring in the judgment).
178 See CRS Report R44585, Evolution of the Meaning of “Waters of the United States” in the Clean Water Act, by
(name redacted)
.
179
Randall S. Abate, Massachusetts v. EPA and the Future of Environmental Standing in Climate Change Litigation
and Beyond, 33 WM. & MARY ENVTL. L. & POL’Y REV. 121, 124 (2008). Accord, e.g., Jonathan H. Adler, Business, the
Environment, and the Roberts Court: A Preliminary Assessment, 49 SANTA CLARA L. REV. 943, 954 (2009) (describing
Massachusetts v. EPA as “by far the most significant environmental decision decided by the Roberts Court thus far”).
180 549 U.S. 497, 504-26 (2007).
181 Id. at 526-35.
182 See Jonathan H. Adler, Heat Expands All Things: The Proliferation of Greenhouse Gas Regulation Under the
Obama Administration, 34 HARV. J.L. & PUB. POL’Y 421, 423-40 (2011).
183 555 U.S. 488, 490-501 (2009); id. at 501 (Kennedy, J., concurring).

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the Environmental Protection Agency unreasonably deemed cost irrelevant with respect to certain
regulations of power plants.184 As a consequence, like in other areas of law, Justice Kennedy was
often at the center of the Court’s environmental law decisions, making it likely that his
replacement will have significant influence on the future of environmental law.185

Federalism
Justice Kennedy helped shape the Court’s jurisprudence regarding the relationship between the
federal government and the states. As noted above, beginning in the Rehnquist Court era, Justice
Kennedy frequently authored or joined majority opinions recognizing federalism-based
limitations on the federal government’s power.186 That trend continued during the Roberts Court.
For instance, Justice Kennedy authored the Court’s opinion in Coleman v. Court of Appeals of
Maryland, which held that Congress did not validly abrogate the states’ sovereign immunity when
it enacted a provision of the Family Medical Leave Act.187 Justice Kennedy likewise joined the
Court’s 5-4 opinion in Shelby County v. Holder, which held that Section 5 of the federal Voting
Rights Act—a formula that determined which states were required “to obtain federal permission
before enacting any law related to voting”—impermissibly interfered with “the traditional course
of relations between the States and the Federal Government.”188
That said, Justice Kennedy nonetheless tended to favor a somewhat broader conception of federal
power in a few contexts.189 In preemption cases, Justice Kennedy commonly (though not
invariably) voted to invalidate state statutes or common law doctrines on the grounds that they
conflicted with federal law.190 More broadly, Justice Kennedy’s expansive view of the role of the
Court in protecting individual liberty resulted in a number of votes to invalidate state laws on the
ground that they violated the Constitution. Most obviously, Justice Kennedy’s majority opinion in
Obergefell v. Hodges191 “struck down bans on same-sex marriage in 13 states.”192 Justice
Kennedy also authored several key opinions articulating federal constitutional standards for when
state judges were required to recuse themselves from state court cases.193 As a consequence,
184 135 S. Ct. 2699, 2704-12 (2015). See also Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 212-27 (2009) (holding

that EPA permissibly relied on cost-benefit analysis when promulgating certain regulations).
185 See Brad Plumer, Kennedy’s Retirement Could Clear Path for Trump’s Environmental Rollbacks, N.Y. TIMES (June
28, 2018), https://www.nytimes.com/2018/06/28/climate/anthony-kennedy-supreme-court-environment.html
(discussing Justice Kennedy’s influence on environmental law and the significance of his successor).
186 See supra “Structural Protections of the Constitution.”
187 566 U.S. 30, 33-44 (2012) (Kennedy, J.).
188 570 U.S. 529, 557 (2013) (quoting Presley v. Etowah Cty. Comm’n, 502 U.S. 491, 500-01 (1992)).
189 See, e.g., Haywood v. Drown, 556 U.S. 729, 731-42 (2009) (holding that state law that divested state courts of
general jurisdiction over suits filed under 42 U.S.C. § 1983 for monetary damages against state corrections officers
violated the Supremacy Clause); Watters v. Wachovia Bank, N.A., 550 U.S. 1, 6-22 (2007) (holding that bank’s
mortgage business was subject to the superintendence of the Office of the Comptroller of the Currency, rather than that
of the states).
190 See, e.g., Mut. Pharm. Co. v. Bartlett, 570 U.S. 472, 475-93 (2013) (Kennedy, J.); Arizona v. United States, 567
U.S. 387, 392-416 (2012) (Kennedy, J.); AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 336-52 (2011); PLIVA,
Inc. v. Mensing, 564 U.S. 604, 608-20, 623-26 (2011); see also supra note 77. But see Chamber of Commerce v.
Whiting, 563 U.S. 582, 587-611 (2011); Altria Grp., Inc. v. Good, 555 U.S. 70, 72-91 (2008).
191 135 S. Ct. 2584, 2593-2608 (2015) (Kennedy, J.).
192 Steve Sanders, Race, Restructurings, and Equal Protection Doctrine Through the Lens of Schuette v. BAMN, 81
BROOK L. REV. 1393, 1458 (2016).
193 See, e.g., Williams v. Pennsylvania, 136 S. Ct. 1899, 1903-10 (2016) (Kennedy, J.); Caperton v. A.T. Massey Coal
Co., 556 U.S. 868, 872-90 (2009) (Kennedy, J.). Cf. Wellons v. Hall, 558 U.S. 220, 220-26 (2010) (holding that

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Justice Kennedy’s influence on the balance of powers between the federal and state governments
was pronounced, making it a key area to consider with regard to how a successor might approach
similar issues.194

Freedom of Religion
Justice Kennedy played a pivotal role in cases involving religious liberty interests.195 Most
recently, Justice Kennedy wrote the Court’s opinion in Masterpiece Cakeshop, Ltd. v. Colorado
Civil Rights Commission, in which the Court concluded that a state civil rights commission
contravened the Free Exercise Clause when evaluating a baker’s claim that selling a wedding
cake to a same-sex couple would violate his religious convictions.196 As discussed above,
Masterpiece Cakeshop built on an earlier Justice Kennedy opinion, Church of the Lukumi Babalu
Aye, Inc. v. City of Hialeah, in which the Court struck down an ordinance forbidding practitioners
of Santeria from engaging in animal sacrifice in accordance with the tenets of their religion.197
Justice Kennedy also joined the Roberts Court’s 5-4 opinion in Burwell v. Hobby Lobby Stores,
Inc., which held that regulations promulgated pursuant to the Patient Protection and Affordable
Care Act that required employers to provide cost-free contraception to their employees
contravened the Religious Freedom Restoration Act.198
Nonetheless, Justice Kennedy did not uniformly side with the interests of religious objectors. For
instance, he joined the Court’s 5-4 opinion in Christian Legal Society v. Martinez, which held that
a public law school did not violate the First Amendment by refusing to officially recognize a
Christian student organization because the organization did not comply with the school’s policy
of allowing all students to join its group.199 Justice Kennedy further noted in Masterpiece
Cakeshop that when reviewing the claims of those who deny goods and services to individuals
protected by federal or state public accommodations laws, courts must resolve these disputes
“without subjecting gay persons to indignities when they seek goods and services in an open
market.”200
With respect to the Establishment Clause, an issue that has tended to divide the Court over the
past half century,201 Justice Kennedy has tended to adopt a more accommodationist approach,
wherein his assessment of whether an Establishment Clause violation occurred stemmed from
evidence of religious discrimination or coercion by the government, as opposed to mere
endorsement of religion.202 During the Rehnquist Court era, Justice Kennedy often found himself
petitioner could pursue claim that state judge engaged in judicial misconduct during capital murder trial).
194 See Daniel Becker, Justice Kennedy: Foot Shoulder of the Federalism Revolution, WAKE FOREST J. OF LAW &
POLICY, (July 2, 2018), https://wfulawpolicyjournal.com/2018/07/02/justice-kennedy-foot-soldier-of-the-federalismrevolution/.
195 See, e.g., Salazar v. Buono, 559 U.S. 700, 705-22 (2010) (Kennedy, J.) (holding that lower courts erred by enjoining
government from implementing statute that would transfer memorial containing religious symbol from federal land to
private land).
196 138 S. Ct. 1719, 1723-32 (2018) (Kennedy, J.).
197 508 U.S. 520, 524 (1993).
198 134 S. Ct. 2751, 2759-85 (2014); id. at 2785-87 (Kennedy, J., concurring).
199 561 U.S. 661, 667-98 (2010); id. at 703-06 (Kennedy, J., concurring).
200 138 S. Ct. at 1732 (Kennedy, J.).
201 See Samuel J. Levine, A Look at the Establishment Clause Through the Prism of Religious Perspectives: Religious
Majorities, Religious Minorities, and Nonbelievers, 87 CHI.-KENT L. REV. 775, 798 (2012) (noting “deep and abiding
divisions in the interpretation and application of the Establishment Clause” on the Supreme Court).
202 See Erwin Chemerinsky, Why Church and State Should Be Separate, 49 WM. & MARY L. REV. 2193, 2201 (2008)

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in dissent in rulings counseling for stricter separation of church and state.203 Nonetheless, Justice
Kennedy authored the Court’s opinion in Lee v. Weisman in 1993, concluding that the
Establishment Clause prohibited a nonsectarian prayer at a public school graduation ceremony
because of the coercive effects the prayer would have on nonadherents.204
With Justice O’Connor’s retirement from the Court in 2005, Justice Kennedy became the Court’s
median vote on Establishment Clause issues.205 While the Roberts Court has entertained few
appeals on Establishment Clause issues, in its most notable ruling, Town of Greece, New York v.
Galloway, Justice Kennedy, writing for a plurality of the Court, embraced a most
accommodationist view of the First Amendment to conclude that a municipality did not violate
the Constitution by opening its meetings with a prayer.206 Given Justice Kennedy’s critical role on
religious freedom matters and a spate of disputes over religious liberty continuing to arise in the
lower courts, Justice Kennedy’s successor could be quite influential in how the Court resolves
such disputes in the future.207

Freedom of Speech
Throughout his tenure on the Roberts Court, Justice Kennedy authored or joined numerous
opinions invoking the First Amendment’s Free Speech Clause to strike down state and federal
laws.208 In particular, Justice Kennedy frequently voted to invalidate statutes that, in his view,
unconstitutionally restricted political participation.209 For instance, Justice Kennedy authored the
5-4 majority opinion in Citizens United v. FEC, which held that a federal campaign finance law
banning corporate independent expenditures for electioneering communications violated the First
Amendment.210 Justice Kennedy also joined the Court’s 5-4 opinion in McCutcheon v. FEC,
which invoked the First Amendment to invalidate a federal statute that imposed aggregate limits
on political contributions.211
Justice Kennedy’s broad conception of the Free Speech Clause carried over into other contexts as
well. For one, Justice Kennedy cast decisive votes in several First Amendment cases involving
(describing Justice Kennedy as an accommodationist).
203 See, e.g., Cty. of Allegheny v. ACLU, 492 U.S. 573, 655 (1989) (Kennedy, J., dissenting) (arguing that the display
of a crèche in a county courthouse did not violate the Establishment Clause); see McCreary Cty. v. ACLU, 545 U.S.
844, 885 (2005) (Scalia, J., dissenting; joined by Kennedy, J.) (maintaining that the display of the Ten Commandments
at a county courthouse did not run afoul of the Establishment Clause).
204 505 U.S. 577, 580-99 (1992).
205 Kyle Langvardt, The Lawless Rule of the Norm in the Government Religious Speech Cases, 20 WASH. & LEE J.
CIVIL RTS. & SOC. JUST. 405, 441 (2014) (describing Justice Kennedy as replacing Justice O’Connor as the Court’s
“ideological fulcrum” on establishment matters).
206 134 S. Ct. 1811, 1815-28 (2014) (Kennedy, J.).
207 See Amy Goldstein, Religious Liberty becomes a Main Focus for Conservatives in Supreme Court Nomination,
WASH. POST (July 7, 2018, 8:22 PM), https://www.washingtonpost.com/national/health-science/religious-libertybecomes-a-main-focus-for-conservatives-in-supreme-court-nomination/2018/07/07/45503c2c-807e-11e8-b0effffcabeff946_story.html.
208 See, e.g., Nat’l Inst. of Family & Life Advocates v. Becerra, 585 U.S. ___, 2018 WL 3116336, at *16 (June 26,
2018) (Kennedy, J., concurring).
209 See, e.g., Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 727-55 (2011); Davis v. FEC, 554
U.S. 724, 728-45 (2008); FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 483-504 (2007) (Scalia, J., concurring, joined
by Kennedy, J.).
210 558 U.S. 310, 318-72 (2010) (Kennedy, J.). See also Am. Tradition P’ship Inc. v. Bullock, 567 U.S. 516, 516-17
(2012) (concluding that Citizens United’s holding applied to the states).
211 134 S. Ct. 1434, 1440-62 (2014).

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labor organizations.212 Most significantly, Justice Kennedy joined the Court’s recent 5-4 opinion
in Janus v. American Federation of State, County, & Municipal Employees, Council 31, which
held that a state’s extraction of agency fees from nonconsenting public sector employees violated
the First Amendment.213 In addition, Justice Kennedy regularly voted to invalidate restrictions on
commercial or professional speech.214 For example, Justice Kennedy’s majority opinion in Sorrell
v. IMS Health Inc., struck down a state statute restricting speech in aid of pharmaceutical
marketing.215
Nevertheless, Justice Kennedy believed that speech could at times be subject to government
restraint. Justice Kennedy’s 5-4 majority opinion in Garcetti v. Ceballos, for instance, concluded
that statements made by government employees pursuant to their official duties were not
protected by the First Amendment.216 Justice Kennedy also joined the Court’s 5-4 opinion in
Morse v. Frederick, which held that a school principal did not violate a student’s right to free
speech by confiscating a banner that the student displayed at an off-campus, school-approved
activity.217 Additionally, Justice Kennedy joined the majority opinion in Holder v. Humanitarian
Law Project, in which the Court concluded that a federal law making it a crime to “knowingly
provid[e] material support or resources to a foreign terrorist organization,” including “training” or
“expert advice and assistance,” did not violate certain plaintiffs’ free speech rights.218 With the
prospect of free speech issues continuing to dominate the Roberts Court’s docket, it remains to be
seen whether Justice Kennedy’s free speech jurisprudence will continue to be the prevailing view
on the High Court.219

National Security
Justice Kennedy authored or joined a number of majority opinions that closely divided the Court
on matters related to national security. These opinions have tended to defer to the authority of the
political branches on national security matters.220 For example, in Ziglar v. Abbasi, writing the
opinion of the Court, Justice Kennedy held that lower courts had erred by allowing certain
detained foreign nationals to sue the government under an implied cause of action.221 He wrote
that “[n]ational-security policy is the prerogative of the Congress and President,” cautioning that
“judicial inquiry into the national-security realm” raises separation-of-powers concerns.222
212 See, e.g., Harris v. Quinn, 134 S. Ct. 2618, 2623-44 (2014) (holding that the First Amendment prohibited the

collection of an agency fee from certain persons who did not wish to join or support a union).
213 585 U.S. ___, 2018 WL 3129785, at *5-32 (June 27, 2018).
214 See, e.g., Nat’l Inst. of Family & Life Advocates v. Becerra, 585 U.S. ___, 2018 WL 3116336, at *12 (June 26,
2018).
215 564 U.S. 552, 557-80 (2011) (Kennedy, J.).
216 547 U.S. 410, 413-26 (2006) (Kennedy, J.).
217 551 U.S. 393, 396-410 (2007); id. at 422-25 (Alito, J., concurring, joined by Kennedy, J.).
218 561 U.S. 1, 7-8, 25-39 (2010) (quoting 18 U.S.C. § 2339B(a)(1)).
219 See Erwin Chemerinsky, Anthony Kennedy and Free Speech, SCOTUSBLOG, (Jul. 2, 2018, 2:38 PM),
http://www.scotusblog.com/2018/07/anthony-kennedy-and-free-speech/ (discussing Justice Kennedy’s free speech
legacy on the Court).
220 See Trump v. Hawaii, No. 17-965, 2018 WL 3116337, at *25 (June 26, 2018) (Kennedy, J., concurring); Ziglar v.
Abbasi, 137 S. Ct. 1843, 1861 (2017) (Kennedy, J.); Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J.,
concurring); Boumediene v. Bush, 553 U.S. 723, 796-97 (2008) (Kennedy, J.). See also Holder v. Humanitarian Law
Project, 561 U.S. 1, 34-35 (2010); Rasul v. Bush, 542 U.S. 466, 487 (2004) (Kennedy, J., concurring).
221 137 S. Ct. at 1863.
222 Id. at 1861.

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Justice Kennedy similarly emphasized national security concerns in several of the Court’s rulings
with respect to immigration matters. In at least two determinative opinions, Justice Kennedy
accorded significant deference to immigration decisions of the political branches because they
implicated foreign affairs and national security.223 Most recently, in Trump v. Hawaii, Justice
Kennedy joined an opinion reaffirming the deference afforded to the political branches on
immigration when upholding a presidential proclamation restricting the entry of foreign nationals
from specified countries.224
Nonetheless, Justice Kennedy has also provided the deciding vote in cases recognizing limitations
on the authority of the President over matters concerning national security.225 For example, in
Hamdan v. Rumsfeld, he joined the Court in an opinion concluding that a presidential order
creating a military commission to try enemy belligerents for specified categories of offenses
violated the governing federal statutes.226
Perhaps most notably, Justice Kennedy authored the majority opinion in Boumediene v. Bush, in
which the Court held that foreign nationals “designated as enemy combatants and detained at the
United States Naval Station at Guantanamo Bay, Cuba”227 were entitled to invoke the
constitutional “privilege of habeas corpus.”228 While Justice Kennedy’s majority opinion
recognized the President’s “substantial authority to apprehend and detain those who pose a real
danger to our security,” the Court ultimately concluded that this power would be “vindicated, not
eroded,” by extending the writ of habeas corpus.229 He wrote that “few exercises of judicial power
are as legitimate or as necessary as the responsibility to hear challenges to the authority of the
Executive to imprison a person.”230 Given how closely divided the Court has been in cases like
Trump and Boumediene, a critical question going forward is how the Roberts Court will approach
national security matters without Justice Kennedy.231

Second Amendment
Justice Kennedy also provided key deciding votes in the few but significant cases the Roberts
Court heard on the Second Amendment. Most notably, Justice Kennedy joined the five-Justice
majority that concluded in District of Columbia v. Heller that the Second Amendment protected
an individual (as opposed to collective) right to keep and bear arms.232 Two years later, he joined
a majority of the Court to hold in McDonald v. City of Chicago that the Second Amendment
governed state and local governments through the Fourteenth Amendment.233 However, Justice
223 See, e.g., Din, 135 S. Ct. at 2140 (Kennedy, J., concurring); United States v. Verdugo-Urquidez, 494 U.S. 259, 275

(1990) (Kennedy, J., concurring).
224 See 2018 WL 3116337, at *25 (Kennedy, J., concurring).
225 See, e.g., Boumediene, 553 U.S. at 795; Hamdan v. Rumsfeld, 548 U.S. 557, 646 (2006) (Kennedy, J., concurring).
226 Hamdan, 548 U.S. at 636.
227 Boumediene, 553 U.S. at 732.
228 Id. at 771.
229 Id. at 797.
230 Id.
231 See Pratheepan Gulasekaram, An Immigration Legacy at Odds with Justice Kennedy’s Animating Principles,
SCOTUSblog (Jul. 3, 2018, 7:29 PM), http://www.scotusblog.com/2018/07/an-immigration-legacy-at-odds-withjustice-kennedys-animating-principles/ (discussing Justice Kennedy’s jurisprudence with respect to immigration and
national security matters).
232 554 U.S. 570, 573-636 (2008).
233 561 U.S. 742, 748-91 (2010).

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Kennedy declined to join other Justices who called for the Supreme Court to consider Second
Amendment challenges to laws imposing waiting periods for purchasing firearms234 or restricting
the right to carry firearms in public.235 Given the close divide on the Court relating to the
regulation of firearms, Justice Kennedy’s successor could have a notable effect on how the
Second Amendment and the Heller ruling are interpreted going forward.236

Separation of Powers
As discussed, since his appointment to the Court, Justice Kennedy has frequently stressed the
importance of the Constitution’s separation of the legislative, executive, and judicial powers,
often casting decisive votes in the Court’s separation-of-powers cases.237 For example, in a 2011
decision, Justice Kennedy emphasized the historical and practical importance of constitutional
limitations on the power of the judicial branch.238 Justice Kennedy provided the fifth vote in a
number of Roberts Court decisions interpreting Article III of the Constitution, delineating—and
frequently limiting—the authority of the courts to adjudicate disputes.239 Justice Kennedy has
authored or joined opinions limiting the power of the legislative240 and executive241 branches, as
well. For example, as discussed above,242 Justice Kennedy has called for the judicial branch to
carefully police the administrative state,243 while also recognizing that the judicial branch should
tread carefully in realms committed to the political branches, such as national security.244
In so doing, Justice Kennedy has not necessarily adopted a uniform approach toward separationof-power matters.245 He has, at times, authored or joined opinions taking a more formalist
234 See Silvester v. Becerra, 138 S. Ct. 945, 945-52 (2018) (Thomas, J., dissenting from the denial of certiorari).
235 See Peruta v. California, 137 S. Ct. 1995, 1996-2000 (2017) (Thomas, J., dissenting from the denial of certiorari).
236 See Robert Barnes, Justice Anthony M. Kennedy May be the Middleman in the Gun-Rights Debate, WASH. POST

(June 22, 2014), https://www.washingtonpost.com/national/justice-anthony-m-kennedy-may-also-be-the-middlemanin-the-gun-rights-debate/2014/06/22/9075e0b6-f947-11e3-a3a5-42be35962a52_story.html.
237 See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 536 (2009) (Kennedy, J., concurring); Clinton v. City
of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring); Public Citizen v. U.S. Dep’t of Justice, 491 U.S.
440, 468 (1989) (Kennedy, J., concurring).
238 Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 132-33 (2011) (Kennedy, J.).
239 United States v. Windsor, 570 U.S. 744, 759, 761 (2013) (Kennedy, J.); Genesis Healthcare Corp. v. Symczyk, 569
U.S. 66, 69 (2013); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 402 (2013); United States v. Juvenile Male, 564 U.S.
932, 938 (2011); Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 130 (2011) (Kennedy, J.); Salazar v. Buono,
559 U.S. 700, 713 (2010) (Kennedy, J., plurality opinion); Summers v. Earth Island Inst., 555 U.S. 488, 500 (2009);
Davis v. FEC, 554 U.S. 724, 733-34 (2008); Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269, 275 (2008);
Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719-20 (2007); Hein v. Freedom from
Religion Found., Inc., 551 U.S. 587, 608 (2007); FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007);
Massachusetts v. EPA, 549 U.S. 497, 521 (2007). See also South Carolina v. North Carolina, 558 U.S. 256, 267-68
(2010) (outlining standard for nonstate parties to intervene in cases arising under the Supreme Court’s original
jurisdiction).
240 See Salazar, 559 U.S. at 717; Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 502 (2010).
See also Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2090 (2015) (Kennedy, J.).
241 See supra note 237; Boumediene v. Bush, 553 U.S. 723, 797 (2008) (Kennedy, J.). See also NLRB v. Noel Canning,
134 S. Ct. 2550, 2557 (2014).
242 See supra “Administrative Law;” “National Security.”
243 See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 536-37 (2009) (Kennedy, J., concurring).
244 See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1861 (2017) (Kennedy, J.).
245 Two schools of thought have developed for approaching separation-of-powers disputes. The formalist interpretation
focuses on the structural divisions in the Constitution with the idea that close adherence to these rules is required in
order to achieve the preservation of liberty. The functionalist interpretation takes a more flexible approach,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR45256. Public record. Not legal advice.