Kennedy's Legacy: A Principled Justice

74 Pages Posted: 5 Mar 2018 Last revised: 9 Aug 2019

See all articles by Mitchell N. Berman

Mitchell N. Berman

University of Pennsylvania Carey Law School

David Peters

University of Pennsylvania Law School - Student/Alumni/Adjunct

Date Written: 2019


After three decades on the Court, Justice Anthony Kennedy remains its most widely maligned member. Concentrating on his constitutional jurisprudence, critics from across the ideological spectrum have derided Justice Kennedy as “a self-aggrandizing turncoat,” “an unprincipled weathervane,” and, succinctly, “America’s worst Justice.” We believe that Kennedy is not as bereft of a constitutional theory as common wisdom maintains. To the contrary, this Article argues, his constitutional decisionmaking reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law — the account, more or less, that one of has introduced in other work and dubs “principled positivism.” We develop and defend this contrarian claim by attending to many of Kennedy’s most notorious opinions, from Alden to Zivotofsky, across diverse domains of constitutional law. At bottom, this Article has two goals: to support Justice Kennedy against what we consider unduly harsh criticism, and to advance the case for principled positivism as a general theoretical account of the content of American constitutional law.

Keywords: Constitutional law & philosophy, jurisprudence, Supreme Court of the United States, SCOTUS, Anthony M. Kennedy, Justice Kennedy, judicial decisionmaking, constitutive constitutional theory, principled positivism, rules, principles, H. L. A. Hart, Ronald Dworkin

Suggested Citation

Berman, Mitchell N. and Peters, David, Kennedy's Legacy: A Principled Justice (2019). Hastings Constitutional Law Quarterly, Vol. 46, p. 311, 2019, U of Penn Law School, Public Law Research Paper No. 18-5, Available at SSRN:

Mitchell N. Berman (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

David Peters

University of Pennsylvania Law School - Student/Alumni/Adjunct ( email )

Philadelphia, PA
United States

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