| This dissertation explores the pivotal role of Anthony Kennedy on the current Supreme Court. It analyzes the body of Kennedy's opinions, aided by his previous record on the Ninth Circuit and by public statements he delivered before coming to the Court. I find that Kennedy articulates and applies a distinctive and coherent approach to constitutional interpretation. He rejects the originalism based on a reading of text and specific tradition advocated by Justices Scalia and Thomas. In its place, he embraces a moral interpretation of the Constitution that empowers courts to enforce the full and necessary meaning of liberty. The substance of Kennedy's conception of the full and necessary meaning of liberty, however, often leads him to concur in more conservative results.; The body of this dissertation traces Kennedy's interpretive and substantive approaches in several areas of constitutional law. Chapter One analyzes Kennedy's use of the split atom of sovereignty metaphor in discerning the extent of federal and state power. Chapter Two examines the ideal of personal liberty that drives his opinions in cases involving abortion and religion. It chronicles his substantive and interpretive effort to fashion a “careful, reasoned balance” that seeks to the perceived excesses of originalism and of established doctrines of privacy and strict separation. Chapter Three surveys Kennedy's substantive ideal of equality as neutral individualism and his extension of that ideal beyond affirmative action to strike state action that classifies citizens based on race, sex, religion and sexual orientation. Chapter Four investigates how and why Kennedy's substantive conception of personal and political liberty leads him to become the justice most likely to accept free speech claims.; Seen as a whole, Kennedy's opinions outline a distinctive moral approach to judicial power based on coherent conceptions about the nature of personal liberty, the role of government in securing that liberty, and power of the judiciary to enforce these conceptions. The conclusion examines how Kennedy's jurisprudence departs from both the Warren Court and the originalist counter-reaction, and it explores the theoretical and political viability of his understanding of the Constitution. |
