Is this the End of the Second Reconstruction?

Abstract:     
This Essay examines the recent turn in Justice Kennedy’s race jurisprudence. The shift is palpable, from a narrow and uncompromising approach to the use of race by state actors to a more nuanced and contextual understanding of the role that race plays in American society. This is no small change, best explained by Justice Kennedy’s status on the Court as a “super median.” This is a position of power and influence, as any majority coalition must count on Justice Kennedy’s vote; but more importantly, it is also a position of true independence. Justice Kennedy entertains his idiosyncratic and very personal views on the questions of the day because he can. He can even contradict himself.

Far more important than pinpointing the reasons for Justice Kennedy’s newfound jurisprudential awareness are the implications of this shift. This Essay examines three implications. First, litigators must learn Kennedy-speak and whatever issues occupy the justice’s attention. Second, a constitutional world where one justice single-handedly controls constitutional doctrine places grave stress on the moral legitimacy of judicial review. This is the counter-majoritarian difficulty on steroids. Finally, the implications for constitutional law are severe. In particular, this Essay argues that the fate of the Second Reconstruction hinges on the idealism of Justice Kennedy. Reflecting on the Court’s 2010 October Term, this Essay concludes that the Second Reconstruction – and particularly the Voting Rights Act, the crown jewel of the civil rights movement – appears safe for now.

It’s Justice Anthony Kennedy’s country – the rest of us just live in it.

Number of Pages in PDF File: 33

Keywords: race, equal protection, Justice Kennedy, affirmative action, diversity, countermajoritarian difficulty, judicial behavior, super medians, constitutional theory, constitutional law

working papers series