Justice Anthony Kennedy’s Federalism and the Limits of State Sovereignty

This article analyzes Justice Anthony M. Kennedy’s commitment to protecting state sovereignty. In contrast to scholars who view Kennedy’s behavior as merely pragmatic or centrist, this article focuses on principles and tensions underlying his liberty-based approach to federalism. From his early career in Sacramento through three decades on the U.S. Supreme Court, Kennedy sought to restore a federalism he considered essential to personal and political liberty but increasingly “endangered.” His opinions extended beyond the constitutional text to protect traditional areas of state concern, state treasuries, and local political decision making against increasing federal control. However, Kennedy subordinated state sovereignty when it interfered with the federal government’s direct relationship to citizens, promoted economic protectionism, and violated his expansive conceptions of constitutional liberty and human dignity. The article concludes by situating Kennedy’s distinctive conception of federalism within the larger Rehnquist and Roberts Courts.