My short essay (7 pages) “Grading Justice Kennedy: A Reply to Professor Carpenter” forthcoming in the Minnesota Law Review is now available for downloading on SSRN 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.”
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