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

Abstract

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.