Last February, UC Hastings Law hosted the first post-retirement symposium on Justice Kennedy’s jurisprudence, with the justice himself attending. In the Hastings Law Journal’s symposium following the event, my colleague Rory Little has published a valuable survey of Justice Kennedy’s criminal cases during his thirteen years as a federal appellate judge and three decades on the Supreme Court.
Though noting that identifying the full set of Justice Kennedy’s criminal-law opinions proved surprisingly difficult, Professor Little’s essay, titled “‘Balanced Liberty’: Justice Kennedy’s Work on Criminal Cases,” identifies several noteworthy patterns. First, based on a review of some 210 majority opinions, Professor Little concludes that Justice Kennedy leaned more towards the defense than many popular accounts of his tenure on the Court presume. Second, he finds that Justice Kennedy’s criminal-law jurisprudence was considerably less absolutist about the value of liberty interests vis-à-vis government authority than in his most famous substantive due process decisions, like Obergefell v. Hodges. His criminal-law liberty jurisprudence, Professor Little argues, reflected a perceived need to “balance” individual liberty against government interests. Third, with the exception of death-penalty cases, Professor Little finds that Justice Kennedy’s “balanced” approach to criminal law swung “markedly in the government’s favor” in the habeas context. By contrast, Professor Little finds a marked tilt toward the defendant in cases involving either race bias or the death penalty.
For anyone interested in Justice Kennedy’s impact on American law, Professor Little’s essay provides a valuable perspective on an important but little-remarked area of his jurisprudence. Justice Kennedy’s opinions will continue to shape criminal law, no less than other areas, for decades to come, and Professor Little has done a great service helping better map the key contours of Justice Kennedy’s criminal jurisprudence.