Forthcoming 2019: Justice Kennedy and the Counter-Majoritarian Difficulty

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Forthcoming 2019

Forthcoming 2019 is a section from the Everyday Evidence Legal Blog that highlights recent papers from attorneys and professors from across the legal spectrum. These recent and soon-to-be publications offer readers a chance to see a wide range of issues from different legal fields.

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Today’s Forthcoming 2019 features:

Justice Kennedy and the Counter-Majoritarian Difficulty

Hastings Law Journal

Orin Kerr

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.

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