Washington Law Review


Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court's crucial voice in environmental law cases. Kennedy's central role was never more evident than in the two most celebrated environmental cases of the last few years, Kelo v. City of New London and Rapanos v. United States, as he supplied the critical vote in both. Kennedy has in fact been the needle of the Supreme Court's environmental law compass since his nomination in 1988. Although he wrote surprisingly few environmental law opinions over his first eighteen years on the Court, Kennedy was in the majority an astonishing ninety-six percent of the time (as compared to his generic record of being in the majority slightly over sixty percent of the time). This article examines Kennedy's environmental law record on the Court, as well as his preceding thirteen years on the Ninth Circuit. The article evaluates all of the environmental law cases in which he wrote an opinion over those three decades and catalogues his voting record in all Supreme Court cases in which he participated. One striking measure of Kennedy's influence is that he has written just one environmental dissent while on the Court, and that was on states' rights grounds, one of his chief priorities. We believe that Kennedy is considerably more interested in allowing trial judges to resolve cases on the basis of context than in establishing broadly-applicable doctrine. That is, he is a doctrinal minimalist. By consistently demanding a demonstrated "nexus" between doctrine and facts, he has shown an intolerance for elevating abstract philosophy over concrete justice. And, despite his unassailable devotion to states' rights, Kennedy has been quite willing to find federal preemption when it serves deregulation purposes. On the other hand, he is far from an anti-regulatory zealot, although he prefers only one level of governmental regulation. At what might be close to the mid-point in his Court career-and with his power perhaps at its zenith-Justice Kennedy is clearly not someone any litigant can ignore. We hope this article gives both environmental litigants and academics a fertile resource to till. Although Kennedy's environmental record has been sparse until lately, he may be receptive to environmental claims if they are factually well-grounded and do not conflict with his overriding concern for states' rights. The article concludes with some comparisons between Kennedy and Justice Oliver Wendell Holmes.

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