Introduction
The paper refers to liberalism in the judicial decision-making process. Judge Anthony Kennedy who is a liberalist distinguishes it from conservative Judgments. Liberalists believe that liberty is the right of an individual to define his own concept of existing and the mystery of human life. The fundamental idea of liberal democracy is characterized by limited authority, which is derived from the system and structure of a government. Legitimate governance is considered as a delegation of power and sovereignty on individuals who have power and are in a position to govern (Cross, 2007).
Concepts of Liberalism
The concepts of liberalism are that the courts are at liberty to create laws and not be confined from interpreting the laws alone Neubauer and Meinhold (2012). The judges at times act like legislatures rather than a traditional court. Liberalists operate in the idea of a global village and it challenges a federalist society that promotes the election of judges who are inclined to believe in the US constitution and in the US’s system of federalism (Stein, 2008).
Liberal judicial decisions are a type of judicial interpretation applied by judges whereby judges base their decisions on the concept of the facts of law and the case in hand. In deciding their cases, liberal judges use judicial restraint unless the law is unconstitutional. A judicial decision is taken to be liberal depending on how it plays to the wider political debate and its effect on jurisprudence theory. Liberal judges ignored the will of Congress and they also ignored the democratic process by imposing judicial solutions on problems rather than letting the process work itself politically (Knowles, 2009).
Hypothesis
My Supreme Court justice Anthony Kennedy makes Liberal decisions and the essay below shows some of the opinions and decisions he passed to show that he was a liberal.
Opinions and decisions
According to a legal reporter, Anthony attracts the anger of conservatives when he refuses to vote with his rightist colleagues. Kennedy’s pro-choice rulings and pro-gay rights are seen as betrayals. Most of the movement views Kennedy as inclined so much towards abortion, the death penalty, and religion Neubauer and Meinhold (2012)
Abortion
In Minnesota v Hodgson, judge Anthony Kennedy upheld a previously imposed restriction on abortion. A restriction required both parents to be notified about the necessary procedure. In 1992, Kennedy’s opinion in the case involving Planned Parenthood v Casey put more emphasis on the right to abortion which was to be under the Duress Process Clause.
The plurality opinion of the judge ignited a storm of criticism from conservatives. Kennedy’s opinion was to uphold the restrictions and at the same time affirm the Roe precedent. In the case of Stenberg v Carhart the judge gave a dissenting view. His view put down all the laws that were meant to criminalized partial-birth abortion. Kennedy was more lenient on abortion cases and therefore abortion laws were relaxed in the year 2006.
Therefore, as regards abortion, Kennedy was of the opinion that the constitution should protect the right of an individual woman to terminate her pregnancy in its formative stages (Stein, 2008).
Homosexuality and Gay rights
The opinion of Kennedy as regards the concept of liberty gave way to the safeguarding of sexual orientation. In Lawrence v Texas, Anthony’s opinion invalidated the criminal laws that worked against homosexual sodomy. The laws were based on the Due Process Clause. As a result, he overturned the Supreme Court’s ruling on the case involving Bowers v Hardwick. In both cases, he sided with members who were more liberal (Cross, 2007).
Capital punishment
In the case of Roper v Simmons and Atkins v Virginia, Anthony concurred that the execution of minors and the mentally ill was unconstitutional. In the case involving Marsh v Kansas, the judge declined to be drawn among the dissenting judges. In Kennedy v Louisiana, Judge Anthony’s opinion on Eighth Amendment prevented Louisiana from passing the death penalty upon the rape of a child where the evil crime was not anticipated to result in the death of the victim. He went ahead to differentiate between first-degree murder and non-homicide crimes against individuals (Knowles, 2009).
Judge Anthony Kennedy falls under the liberal category
Judge Anthony falls under the category of liberal judges due to his liberal decisions. All his decisions show a movement from the traditional conservative way of handling cases to a more and open way of deciding cases such as his liberal acceptance of the fact that a woman can terminate a pregnancy in its formative stage and that minors and mentally challenged individuals should not be subjected to the criminal proceeding. His view on gay rights also shows that he is a liberal judge since he accepts that this group of people also has their rights that need to be heard (Knowles, 2009).
Conclusion
In conclusion, liberalism seems to be the way to go based on the democratic space created by advancement in technology, availability of information and tolerance of one another in the society.
References
Cross, F. B. (2007). Decision Making in the U.S. Courts of Appeals. New York: Stanford University Press.
Knowles, H. J. ( 2009). The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty. New York: Rowman & Littlefield Publishers.
Neubauer, W.D., & Meinhold, S. S. (2012). Judicial Process: Law, Courts, and Politics in the United States. New York: Cengage Learning.
Stein, M. (2008). John McCain and the Myth of the “Activist Liberal Judge”. Web.