Justice Kennedy and the domains of equal protection

Many have noticed that Justice Kennedy softened his stance on race in the school desegregation cases. The emerging consensus is that Kennedy's new position on race stems from his new position on the Court and that his settlement on race is much like the compromises of his swing-vote predecessors, Justices Powell and O'Connor. But the Powell/O'Connor settlement is the compromise of a pragmatist. Justice Kennedy, in contrast, is an idealist, and his concurrence in Parents Involved is an idealistic opinion. Moreover, the contours of his settlement on race are noticeably different from those of Bakke or Grutter. Analyzing Justice Kennedy's two recent race opinions - his majority opinion in LULAC and his concurrence in Parents Involved, both of which involved a significant shift in Kennedy's views on race - this essay argues that the best explanation for Kennedy's new position is a domain-centered one. The link between these cases is not merely that Justice Kennedy has something new to say about race, but the reason that he does. In both cases, it is when Kennedy stops talking directly about race that he manages to say something new about it. In describing the voting-rights claims of Latinos in LULAC, Justice Kennedy tells the story he has long associated with the electoral domain, one having to do with political agency and expression rather than equality. He speaks in the cadence of the First Amendment, not the Fourteenth. Similarly, in evaluating the equal protection claims raised in Parents Involved, Justice Kennedy focuses not on race, but on a story he has long associated with the educational domain - the exceptional role that schools play in inculcating civic morality. One could eliminate all references to race in both opinions and the underlying stories would still make sense. The essay then argues that Kennedy's shift makes sense if we think that displacement can be a source of power, a phrase Stephen Greenblatt once used to explain why writing about Shakespeare helped him think more clearly about Iraq. In both cases, the story Kennedy associates with the relevant domain serves as a lens, directing his attention away from his usual story about race toward the values he otherwise associates with each domain. Kennedy has long recognized that the political sphere involves robust associational and expressive dimensions, but he now sees how those values connect to racial politics. Kennedy has long thought of schools as institutions for teaching students to be citizens, but he now sees how those lessons extend to interracial relations. The essay concludes by suggesting that the notion of displacement might have broader significance for the way we talk about race. Kennedy's opinion in Parents Involved invites us to abandon our monolithic stories about race and think about equal protection in domain-centered terms. If Justice Kennedy can find something new to say about race, maybe so can we.
Keywords No keywords specified (fix it)
Categories (categorize this paper)
 Save to my reading list
Follow the author(s)
My bibliography
Export citation
Find it on Scholar
Edit this record
Mark as duplicate
Revision history
Request removal from index
Download options
Our Archive

Upload a copy of this paper     Check publisher's policy     Papers currently archived: 27,678
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library
References found in this work BETA

No references found.

Add more references

Citations of this work BETA

No citations found.

Add more citations

Similar books and articles

Monthly downloads

Sorry, there are not enough data points to plot this chart.

Added to index


Total downloads


Recent downloads (6 months)


How can I increase my downloads?

My notes
Sign in to use this feature

There  are no threads in this forum
Nothing in this forum yet.

Other forums