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

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.