GRADING JUSTICE KENNEDY: A REPLY TO PROFESSOR CARPENTER

Randy E. Barnett

Boston University School of Law Working Paper 05-03

Abstract

In my article, Justice Kennedy’s Libertarian Revolution: Lawrence v. Texas (2002-2003 Cato Supreme Court Review 21 (2003)), I claim that Justice Kennedy’s opinion in Lawrence is potentially revolutionary because it protects “liberty” rather than a right of privacy and shifts the burden of justification to the government without any showing that the liberty in question is fundamental, as required by well-established Due Process Clause doctrine. In his article, Is Lawrence Libertarian? (88 Minn. L. Rev. 1140 (2004)), Dale Carpenter calls into question my reading of Lawrence. In this brief reply, I respond to these criticism, by imagining that the words of Justice Kennedy’s opinion were submitted to Professor Carpenter by one of his students as her answer to a final exam question based on the facts of Lawrence. I explain why he would have given the student a B precisely because the opinion deviates from the established doctrine that Professor Carpenter undoubtedly would have taught his class. Because it is a Supreme Court opinion and not a student exam answer, however, Justice Kennedy and the four justices who joined his opinion are free to ignore previous doctrine and adopt a potentiallyrevolutionary approach, for which I give Justice Kennedy an A.

 


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Randy E. Barnett Contact Information

rbarnett@gmail.com
Carmack Waterhouse Professor of Legal Theory Georgetown University Law Center
600 New Jersey Ave. NW
Washington, DC 20001

Presentation and Publication Information:

89 Minnesota Law Review 1500 (2005)

The original paper is B.U.S.L. Working Paper 03-13, July 16, 2003. See http://www.bu.edu/law/faculty/papers/

SSRN Location:

http://www.ssrn.com/abstract=694321

 

 


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