New article, "Justice Kennedy and the Counter-Majoritarian Difficulty"

A symposium piece on the event of the Justice's retirement.


I recently posted to SSRN a short essay, Justice Kennedy and the Counter-Majoritarian Difficulty.  The essay was published in the Hastings Law Journal as part of its recent symposium about Justice Kennedy's work on the Supreme Court.

Here's the Introduction:

Justice Kennedy is known for his vigorous view of the judiciary's role. The statistics bear that out. In a study of how often Justices voted to strike down legislation from 1994 to 2005, Justice Kennedy voted at the highest rate of the Justices on the Court  A quick recall of Justice Kennedy's most famous decisions naturally brings to mind decisions that invalidated legislative action. Think of Lawrence v. Texas, Obergefell v. Hodges, and Citizens United v. Federal Election Commission, just to name a few.

Some believe that Justice Kennedy lacked a consistent jurisprudential philosophy that guided his best-known work. I disagree. It's true that Justice Kennedy's opinions don't fit the standard narratives that guide so much analysis of Supreme Court decisions. These days, a judicial philosophy tends to be evaluated either using theories of interpretation such as originalism or by considering whether a Justice's opinions tend to favor consistently liberal or conservative outcomes. From those perspectives, Justice Kennedy's opinions don't seem to trace a straight line.

But I think Justice Kennedy's opinions do reflect a consistent view of the Supreme Court's role. It's a judicial philosophy rooted in a particular answer to the famous problem of constitutional law known as the counter-majoritarian difficulty. As you know, that phrase is generally attributed to Alexander Bickel and his famous book The Least Dangerous Branch. The puzzle is this: judges exercising judicial review invalidate legislation. But how is it democratically legitimate for judges, who are not elected, to strike down laws that the people's elected branches have enacted?

This brief Essay makes two points. First, it argues that Justice Kennedy's jurisprudence was rooted in a particular answer to the counter-majoritarian difficulty. According to this view, a vigorous judiciary is not necessarily counter-majoritarian because the public, over time, wants the Supreme Court to take that role. A strong Supreme Court that invalidates legislative action can be popular and even beloved among the public over time. I think Justice Kennedy's opinions are generally consistent with that theme.

Second, the Essay scrutinizes the assumptions of Justice Kennedy's view. It argues that what we might call the "popular support" solution to the countermajoritarian difficulty can be expressed in four different ways. It then explores each of the four arguments and considers whether they are persuasive. The persuasiveness of the approaches depends on your background assumptions about constitutional structure and the broader role of constitutions.

I confess at the outset that I am not persuaded by Justice Kennedy's view. I have some significant priors here: I'm a longtime fan of stare decisis, judicial restraint, and a modest view of the judicial role. Given that, my skepticism should be no surprise. But my interest in this Essay is not in the views of a single wayward former clerk like me. Instead, my goal is to try to contribute, in some small way, to understanding the assumptions on which Justice Kennedy's jurisprudence rests.




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  1. What throws people off about Kennedy is Obergefell. But the reality of Obergefell is that it helped Republicans by taking a divisive issue out of the public discourse…and unlike abortion same sex marriage is innocuous and impacts very few people. You know what isn’t an innocuous law? Obamacare. And according to Biskupic’s book about Roberts Kennedy was prepared to find the ACA individual mandate unconstitutional and NOT severable!?! Bottom line—the guy was a partisan concerned with the success of the Republican Party.

    1. “helped Republicans”

      With friends like him, we don’t need enemies.

      1. Conservatives lost the culture war with him. They would have lost the culture war without him.

    2. It doesn’t impact a lot of people directly, but it poisons society. When marriage is no longer about the traditional nuclear family and rearing children and instead making two deviants happy that society has given them its stamp of approval on their gross bedroom behavior, marriage as an institution is damaged.

      1. “Traditional nuclear family” is an oxymoron. Up until the last 70 years the nuclear family rarely existed because early death was so prevalent. So just take the first 7 presidents and you would see how rare a nuclear family was with widows and step parents and children growing up without parents and parents giving children to other family members to raise. If the nuclear family was so important humans would have died out long ago.

        1. And if we want to be traditional, then a family has traditionally consisted of a patriarch and matriarch managing a large compound housing all male descendants, their families, and unwed daughters, typically working in the family business, whether it’s farming or craftsmanship.

          1. It’s almost like conservatives have never seen a Jane Austen movie?? Oh, and with more immigrants the nuclear family is breaking down and WASPs will suffer as Asians raise children in a multigenerational households with more people to share the joy/burden of raising children. In fact from what I can surmise both Obama and the Trump White House feature grandparents helping with children!

  2. The question, concisely stated:
    “But how is it democratically legitimate for judges, who are not elected, to strike down laws that the people’s elected branches have enacted?”

    Short version of the answer:
    “Because the Bill of Rights is an explicitly counter-majoritarian document.”

    We don’t have a democracy; we have a republic which has as a primary (unstated) principle valuing each individual, even over the “good” of “the whole”. The Bill of Rights states principles that people don’t necessarily “like” or “respect” until the majority turns on them and/or their interests. Enforcing the Bill of Rights in favor of the minority (of whatever flavor) against whom the majority aims their power is arguably central to the judicial role, particularly when sitting on the Supreme Court.

    There it is, in short. I’m not getting paid by the word.

    1. Well said, thanks.

      1. I’ll add my thanks. And …

        As a co-equal branch, the judiciary is the only defense from the abuse of our rights by the executive and legislative branches.

        Downright scary is the increasing excuse of “a duly elected President” which would apply only to an absolute dictatorship. “He wa

        1. …”He was elected” seems to assume voters approved absolutely everything about the man, and overlooked every single negative … and who won by a handful of voters, 39,000 in three states combined, well within the possibilities of such massive Russian interference, Wikileaks and Comey’s Hillary assault.

          These are dangerous times for our Constitution and for the rights it defends. Democrats are now competing to see who can be the most extreme in assaulting individual liberty, Republicans are already there. And libertarians are babbling anti-government slogans, to “promote libertarian ideas,” People are now open to even radical libertarian solutions, but we have not a single one.

          The judiciary was our last defense of the Constitution … until the 2/3 majority to approve Justices was breached. We must restore that by Amendment.

          1. ”He was elected” seems to assume voters approved absolutely everything about the man, and overlooked every single negative

            As does, “This was litigated in 2016.”

          2. “until the 2/3 majority to approve Justices was breached.”

            There has never been a 2/3rds majority requirement to confirm Justices.

            There used to be a 2/3rds majority requirement for cloture in order to even hold a confirmation vote. However, it should be noted that there are several cases for Supreme Court Justice nominees where a cloture vote to end a filibuster was required and passed and then the actual confirmation vote was a bare minimum 51%

            Do not confuse cloture for ending filibusters with the actual confirmation vote. Again as state above there are cases where Senators voted for cloture while intending to vote against confirmation.

    2. But several of Kennedy’s most famous opinions (Lawrence v. Texas, Obergefell v. Hodges) involved the 14A, not the Bill of Rights. The 14A is not an expressly counter-majoritarian document. It has an expressly majoritarian remedy, at Section 5. And since the Bill of Rights were never intended to limit the states in the first place, how can it be said that they were “explicitly . . . counter-majoritarian” with respect to state action?

      1. Arguably Section 5 of 14A gives no role to the Courts except for interpreting Congressional passed legislation.

        No legislation, no judicial power.

        1. That seems like a logical reading of the 14A, especially in context. Judicial review had not ramped up by the time of the 14A, which itself was enacted in part in response to legislative concerns about SCOTUS over-exerting itself in Dredd Scott, more specifically fears that either the President or SCOTUS would declared the 1866 Civil Rights Act unconstitutional.

          Given that history, your interpretation is certainly better than Kennedy’s insane power grab in City of Boerne. I think the main issue is that SCOTUS should have interpreted the 14A as a direct rebuke of the “traditional separation of powers between Congress and the Judiciary”, rather than doubling-down on their power.

          Raises some interesting issues re: counter-majoritarianism too. The RFRA is itself a counter-majoritarian law, since it purports to limit the majority. When Kennedy narrowed the RFRA by limiting Congressional power, was it counter-majoritarian of him to do so?

          1. When enacted the RFRA had enormous support. It would have been counter-(local!)majoritarian, but not globally so.

  3. Someone said of Justice Kennedy that he was not, as was so often said, a moderate; rather, he was an extremist with an unusual collection of extreme views.

    1. That, indeed, is very well put.

      1. Agreed, it fits Tony K.

    2. Pretty much. Only an extremist could find that prohibiting gay sex/marriage is an affront to human dignity.

  4. For deciding where counter-majoritarianism should apply, I suggest the following taxonomy. Counter-majoritarianism:

    1. Is right and required for the defense of enumerated rights of natural persons. And likewise is applicable to the enumerated rights of corporations, insofar as each such corporate right is also explicitly supported by statute—except that the constitutional prohibition against taking property without just compensation will always apply.

    2. Is applicable, but complicated, when used to defend property rights which are explicitly stated in the Constitution. The complications being mutual interactions among rival property rights claims—with some claimants being political majorities, and others being individual natural persons, or corporations.

    3. Is at a low ebb when defending so-called natural rights, and other vaguely-founded claims by individuals seeking to be personally empowered to stay the hand of government.

    4. Is right out as a backstop against unwise policy, or on questions of fact upon which policy is based, or on contested theoretical questions—including almost every assertion made about economics.

    5. Can be applied against arbitrary and capricious actions by political majorities, but only insofar as the actions ruled upon are explicitly barred by statute from being exercised arbitrarily or capriciously.

    6. Cannot, except in cases mentioned above, reach choices made by majorities based only on political will—including those based on apparently arbitrary choice, or without supporting evidence.

    No doubt you lawyers will have fun taking that apart. Please don’t bother telling me I am wrong because what I suggest is not the way the law works now. I know that. It’s part of my point. Instead, tell me why proposed changes you don’t like are no good. Please try to be sure you don’t end up arguing in favor of judicial supremacy by accident. If you want to make that case on purpose, have at it.

  5. How was Justice Kennedy any different from some fancy-dress, bemedalled colonel claiming to embody the General Will of the people against the corrupt and decadent parliamentarians and politicians? Except he had a robe not a military uniform.

  6. My basic difficulty with Justice Kennedy is that he treated his personal opinions on various issues as if they were objective and incontrovertible reality. What Potter Stewart did with obscenity – “I know it when I see it” – Anthony Kennedy did with morality generally. What was right to him personally was inherently, universally right; what was wrong to him personally was inherently, universally wrong. He consulted his conscious to decide his cases.

    There are situations where there may be nothing better to consult. But when a judge is purporting to interpret a written constitution in what purports to be a democracy, there has to be some other basis for completely discounting what others, through their elected representative, have chosen.

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