Roberts, Kennedy, and the Subtle Differences that Matter in Obergefell

9 Pages Posted: 28 Oct 2015

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Date Written: October 27, 2015


The Supreme Court’s enormously significant decision in Obergefell v. Hodges features a nuanced difference of opinion between Justice Kennedy and Chief Justice Roberts regarding the institutional role of the judiciary. Kennedy appears to be a functionalist, and Roberts a formalist, but that difference alone cannot explain the sharp debate animating their dueling opinions in recent gay rights cases. Kennedy’s functionalism is rooted in its own brand of formalism -- he is animated by concerns about legal regularity, notice, and the manageability of rights -- and that instinct drives Kennedy to intervene in cases that Chief Justice Roberts would leave entirely to the political process. These different variants of formalism -- one couched in the separation of powers, the other based on procedural regularity -- fuel a dispute has emerged in the contexts of national security and criminal sentencing and will resurface in future controversies as well.

Suggested Citation

Landau, Joseph Benjamin, Roberts, Kennedy, and the Subtle Differences that Matter in Obergefell (October 27, 2015). Fordham Law Review, Vol. 84, No. 101, 2015, Fordham Law Legal Studies Research Paper No. 2681173, Available at SSRN:

Joseph Benjamin Landau (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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