Tuesday, May 28, 2013
Stephanos Bibas (Penn) has posted "Justice Kennedy's Sixth Amendment Pragmatism," an essay written in conjunction with an appearance at a McGeorge Law Review symposium on Justice Kennedy's jurisprudence, on SSRN. Here is the abstract:
This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone is not a bright-line rule derived from history, but a flexible approach that is workable today. Notwithstanding the press’s assumptions about him as a swing Justice, his approach is remarkably consistent and principled.
The essay explores four important themes in his Sixth Amendment jurisprudence. First is the use of history. Justice Kennedy is a moderate originalist, looking to history where it works but adapting it to modern realities, especially to new circumstances and new problems. Second is his common-law incrementalism and flexibility, in contrast to some other Justices’ rigid formalism. Third is Justice Kennedy’s structural approach to the Constitution as fostering dialogue among branches and levels of government. He emphasizes federalism and checks and balances, not a strict separation of powers. Fourth is his use of practicality and common sense to leaven theoretical abstractions. He looks closely at the purposes of laws, their effects, the lessons of expertise, and the existence of alternative solutions. In interpreting the Sixth Amendment, then, Justice Kennedy is fundamentally a practical lawyer, applying the humble wisdom born of experience rather than the rigid extremes that flow from a quest for theoretical purity.
This essay will appear in the McGeorge Law Review's symposium edition in Volume 44.