Posted by Randy Barnett:
Grading Justice Kennedy:
My short essay (7 pages) "[1]Grading Justice Kennedy: A Reply to
Professor Carpenter" forthcoming in the Minnesota Law Review is now
available for downloading on SSRN [2]here. Here is the abstract:
In my article, "Justice Kennedy's Libertarian Revolution: Lawrence
v. Texas" (2002-2003 Cato Supreme Court Review 21 (2003)), I claim
that Justice Kennedy's opinion in Lawrence is potentially
revolutionary because it protects "liberty" rather than a right of
privacy and shifts the burden of justification to the government
without any showing that the liberty in question is fundamental, as
required by well-established Due Process Clause doctrine. In his
article, "Is Lawrence Libertarian?" (88 Minn. L. Rev. 1140 (2004)),
Dale Carpenter calls into question my reading of Lawrence. In this
brief reply, I respond to these criticism, by imagining that the
words of Justice Kennedy's opinion were submitted to Professor
Carpenter by one of his students as her answer to a final exam
question based on the facts of Lawrence. I explain why he would
have given the student a B precisely because the opinion deviates
from the established doctrine that Professor Carpenter undoubtedly
would have taught his class. Because it is a Supreme Court opinion
and not a student exam answer, however, Justice Kennedy and the
four justices who joined his opinion are free to ignore previous
doctrine and adopt a potentiallyrevolutionary approach, for which I
give Justice Kennedy an A.
As Larry Solum likes to say, "download it while it's hot."
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=694321
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=694321
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