'Balanced Liberty' – Justice Kennedy's Work in Criminal Cases

19 Pages Posted: 8 May 2019

See all articles by Rory K. Little

Rory K. Little

UC Hastings College of the Law

Date Written: April 16, 2019

Abstract

During his 43 years as a federal appellate judge, Anthony M. Kennedy authored over 350 opinions in cases relevant to criminal law (although establishing a precise number using various electronic databases offers a cautionary tale). Below I offer four general themes that emerge from my review of Justice Kennedy’s written work in criminal cases:

(1) Perhaps surprising to some, when writing for the majority, Justice Kennedy ruled more often for a defense-side view than for the government;

(2) His expansive vision of “liberty,” as expressed in civil cases, was more “balanced” in the criminal context;

(3) His balanced-liberty approach was less defendant-friendly in habeas cases; and

(4) His work was most impactful in (obviously?) death penalty and race-focused cases, as well as plea-bargaining; and he was consistently correct about the doctrine of “willful blindness.”

In conclusion, Justice Kennedy’s 30 years of writings on the U.S. Supreme Court mark him as one of the most influential Justices of our time in shaping criminal law doctrine.

Note: This is a pre-publication copy. Pages and references may change.

Suggested Citation

Little, Rory K., 'Balanced Liberty' – Justice Kennedy's Work in Criminal Cases (April 16, 2019). Hastings Law Journal, Vol. 70, No. 6, 2019. Available at SSRN: https://ssrn.com/abstract=3373203

Rory K. Little (Contact Author)

UC Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-225-5190 (Phone)
415-565-4865 (Fax)

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