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After three decades on the Court, Justice Anthony Kennedy remains its most widely maligned member. Concentrating on his constitutional jurisprudence, critics from across the ideological spectrum have derided Justice Kennedy as “a self-aggrandizing turncoat,” “an unprincipled weathervane,” and, succinctly, “America’s worst Justice.” We believe that Kennedy is not as bereft of a constitutional theory as common wisdom maintains. To the contrary, this Article argues, his constitutional decisionmaking reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more or less, that one of has introduced in other work and dubs “principled positivism.” We develop and defend this contrarian claim by attending to many of Kennedy’s most notorious opinions, from Alden to Zivotofsky, across diverse domains of constitutional law. At bottom, this Article has two goals: to support Justice Kennedy against what we consider unduly harsh criticism, and to advance the case for principled positivism as a general theoretical account of the content of American constitutional law.


Constitutional law & philosophy, jurisprudence, Supreme Court of the United States, SCOTUS, Anthony M. Kennedy, Justice Kennedy, judicial decisionmaking, constitutive constitutional theory, principled positivism, rules, principles, H. L. A. Hart, Ronald Dworkin

Publication Title

Hastings Constitutional Law Quarterly

Publication Citation

46 Hastings Const. L.Q. 311 (2019)