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Justice Kennedy’s Criminal Justice Legacy

David Patton

When Justice Sandra Day O’Connor’s retired in 2005, Justice Anthony Kennedy became the undisputed swing vote on the Supreme Court across a range of topics. But even with that title as a baseline, Kennedy’s vote was particularly critical on matters of criminal justice. Consider the numbers: In the 10 years after O’Connor’s retirement, in 5–4 decisions in which the defendant prevailed, Kennedy provided the fifth vote along with the four liberal members of the court an extraordinary 27 times (triple the number of the next most frequent conservative justice to cast a pivotal pro-defendant vote, Justice Scalia). (Michael A. McCall & Madhavi M. McCall, Quantifying the Contours of Power: Chief Justice Roberts & Justice Kennedy in Criminal Justice Cases, 37 Pace L. Rev. 115, 151–55 (2016).) That’s not to say that Kennedy always swung to the defendant; indeed, in roughly equal measure, he provided the decisive vote for the government. One way to think about Kennedy’s criminal justice jurisprudence is to imagine him at a dinner party in Paris wanting to make a good impression with his companions. What about the death penalty, Justice Kennedy? Ah, barbaric so much of the time. Don’t you think your legal system should pay more attention to international norms? Mais oui! Can you explain this American obsession with juries? Sometimes it’s beyond me. And isn’t your system awfully adversarial? Truth be told, it can be a bit much for my liking.

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