Abstract

As part of the South Carolina Law Review's symposium on the Roberts Court and Equal Protection, this essay looks at Justice Kennedy's sex discrimination jurisprudence. With the new Court, it's natural to be concerned with how the two new Justices might vote in upcoming sex discrimination cases. However, in this essay, I assume what has been the case so far from Chief Justice Roberts and Justice Alito - that they are reliable votes joining Justices Scalia and Thomas on the Court's more conservative wing. The Justice most people should focus on now is Justice Kennedy, the new median Justice now that Justice O'Connor has retired. This essay seeks to analyze Justice Kennedy's sex discrimination jurisprudence and draw conclusions about his thoughts on sex and gender. First, it reviews the cases involving sex discrimination that Justice Kennedy has participated in while on the Court and shows that he has been a fairly consistent vote against sex discrimination claims. Second, it analyzes Justice Kennedy's votes and opinions in sex discrimination cases and attempt to summarize his views. Finally, the essay evaluates Justice Kennedy's conceptions of gender in his opinions and votes. The essay concludes that Justice Kennedy's new role as median Justice is troubling for sex equality jurisprudence generally and constitutional sex discrimination cases specifically, as Justice Kennedy has shown a tendency, in the many cases arising in the parent/child context, to adhere to traditional and paternalistic gender roles.