Justice Kennedy and the Counter-Majoritarian Difficulty

Abstract

This short essay, prepared for a symposium on the jurisprudence of Justice Anthony Kennedy, argues that Justice Kennedy's decisions reflect a view of the Supreme Court's role rooted in a particular solution to the counter-majoritarian difficulty. It first elaborates on Justice Kennedy's view of the Supreme Court and the role of public opinion, and it then considers how that view shaped and explains key aspects of Kennedy's opinions. It then considers whether Justice Kennedy's solution to the counter-majoritarian difficulty was persuasive.

Keywords: Supreme Court, judicial review, Anthony Kennedy

JEL Classification: K1