Justice Kennedy and the Domains of Equal Protection

29 Pages Posted: 21 Sep 2007


Many have noticed that Justice Kennedy softened his stance on race in the school desegregation cases. The emerging consensus is that Kennedy's new position on race stems from his new position on the Court and that his settlement on race is much like the compromises of his swing-vote predecessors, Justices Powell and O'Connor. But the Powell/O'Connor settlement is the compromise of a pragmatist. Justice Kennedy, in contrast, is an idealist, and his concurrence in Parents Involved is an idealistic opinion. Moreover, the contours of his settlement on race are noticeably different from those of Bakke or Grutter. Analyzing Justice Kennedy's two recent race opinions - his majority opinion in LULAC and his concurrence in Parents Involved, both of which involved a significant shift in Kennedy's views on race - this essay argues that the best explanation for Kennedy's new position is a domain-centered one. The link between these cases is not merely that Justice Kennedy has something new to say about race, but the reason that he does. In both cases, it is when Kennedy stops talking directly about race that he manages to say something new about it. In describing the voting-rights claims of Latinos in LULAC, Justice Kennedy tells the story he has long associated with the electoral domain, one having to do with political agency and expression rather than equality. He speaks in the cadence of the First Amendment, not the Fourteenth. Similarly, in evaluating the equal protection claims raised in Parents Involved, Justice Kennedy focuses not on race, but on a story he has long associated with the educational domain - the exceptional role that schools play in inculcating civic morality. One could eliminate all references to race in both opinions and the underlying stories would still make sense.

The essay then argues that Kennedy's shift makes sense if we think that displacement can be a source of power, a phrase Stephen Greenblatt once used to explain why writing about Shakespeare helped him think more clearly about Iraq. In both cases, the story Kennedy associates with the relevant domain serves as a lens, directing his attention away from his usual story about race toward the values he otherwise associates with each domain. Kennedy has long recognized that the political sphere involves robust associational and expressive dimensions, but he now sees how those values connect to racial politics. Kennedy has long thought of schools as institutions for teaching students to be citizens, but he now sees how those lessons extend to interracial relations. The essay concludes by suggesting that the notion of displacement might have broader significance for the way we talk about race. Kennedy's opinion in Parents Involved invites us to abandon our monolithic stories about race and think about equal protection in domain-centered terms. If Justice Kennedy can find something new to say about race, maybe so can we.

Keywords: race, equal protection, desegregation, Parents Involved, domains, elections, Justice Kennedy

Suggested Citation

Gerken, Heather, Justice Kennedy and the Domains of Equal Protection. Harvard Law Review, Vol. 13, No. 1, 2007, Available at SSRN: https://ssrn.com/abstract=1015918

Heather Gerken (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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