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Hastings Constitutional Law Quarterly

Abstract

After three decades on the Supreme Court, Justice Anthony Kennedy enters retirement as, arguably, both its most widely maligned member and its most enigmatic. These distinctions are related, for commentators’ inability to identify any coherent, law-like explanation for Kennedy’s decisions, especially in constitutional disputes, significantly fuels the widespread judgment that no such explanation exists and that he was simply “making it up.” We think the common wisdom largely mistaken. This Article argues that Kennedy’s constitutional decision making reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more or less, that one of us has introduced in other work and dubs “principled positivism.” We develop and defend this contrarian claim by attending to many of Kennedy’s most notorious opinions, from Alden to Zivotofsky, across diverse domains of constitutional law. In so doing, we aim both to support Justice Kennedy against what we consider unduly harsh criticism, and to advance the case for principled positivism as a general theoretical account of the content of American constitutional law.

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