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Bench Memos

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The Kennedy Rule--And Corollary



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Due to some ongoing travel, I’ve been unable to comment on the Boumediane ruling, and I won’t be able to say much for several more days, as I’ll be moving around too much to read the whole thing and comment in detail.  But I first heard the news in my car from Rush Limbaugh on Thursday, and within seconds I realized how easy it was to know the essence of the story.  A five-justice majority led by Justice Kennedy holding against the government?  I knew it was bad.

Three years ago, when Justice O’Connor announced her (sadly delayed) departure from the Supreme Court, I mentioned the “O’Connor Rule” I teach my students: “If the Court has declared anything unconstitutional, and the vote was 5-4, and the fifth vote was provided by O’Connor, the case was wrongly decided.”

Now that becomes the Kennedy Rule, with the Kennedy Corollary: If the opinion of the Court in such a case was written by Justice Kennedy, it was incoherently reasoned.  I promise this presumption will work every time



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