Justice Kennedy and the Counter-Majoritarian Difficulty

12 Pages Posted: 13 Jun 2019

See all articles by Orin S. Kerr

Orin S. Kerr

University of California, Berkeley School of Law

Date Written: May 31, 2019

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

Suggested Citation

Kerr, Orin S., Justice Kennedy and the Counter-Majoritarian Difficulty (May 31, 2019). 70 Hastings Law Journal 1213 (2019). Available at SSRN: https://ssrn.com/abstract=3397296

Orin S. Kerr (Contact Author)

University of California, Berkeley School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States

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