Randall Kennedy

Randall Kennedy has been a contributing editor of the Prospect since 1995. He is the Michael R. Klein Professor of Law at Harvard University. His several books include The Persistence of the Color Line: Racial Politics and the Obama Presidency.

Recent Articles

In Extremis

T he confirmation of John Ashcroft as attorney general conjoins fearsome power with reactionary politics. The attorney general makes crucial decisions regarding the administration of justice that are beyond the power of the press, Congress, the White House, or the courts to oversee effectively on an ongoing basis. And Ashcroft, despite his sudden amiability and professed concern with protecting the rights of all Americans, remains a militant--indeed, truculent--right-winger. He is hostile to women's reproductive rights and to the aspirations of gays and lesbians who seek equitable treatment. He is friendly with antiblack bigots, such as the authorities at Bob Jones University --and friendly, too, with the fanatical wing of the gun lobby. The Ashcroft hearings were suffused with deception. The strategy behind Ashcroft's "confirmation conversion" from fundamentalist tribune to restrained public servant is clear: Say what you must to gain enough votes for confirmation, and then pursue...

Lani Guinier's Constitution

Guinier's critics were only half right. She is a political radical--but no quota queen. As a constitutionalist, she was neither separatist nor undemocratic. She would have gotten along nicely with James Madison.

W hen President Clinton abandoned Lani Guinier, she became the latest in a string of jilted appointees dumped once controversy arose. Guinier, who was nominated as head of the Justice Department's civil rights division, was a respected civil rights lawer, legal theorist, and Friend of Bill, whom she has known since their days at Yale Law School. Why ultimately did he abandon her nomination? What in her writing as a University of Pennsylvania Law School professor prompted such bitter opposition? Did the president err in nominating her-- or withdrawing her nomination? What is the meaning of this affair in the ongoing struggle for the soul of the Democratic Party? A hard-nosed political calculation best explains why Clinton dumped Guinier: he believed that he stood to lose less by abandoning than supporting her. Other considerations--personal, accidental, and ideological--also played a role. Clinton has shown that, unlike Presidents Reagan and Bush, he has no strong sense of attachment...

The Bush Court

Be afraid. Be very afraid.

Four of the nine justices currently on the Supreme Court are at least 65 years old. Chief Justice William Rehnquist, the last of the Nixon appointees, is 75. Justice John Paul Stevens, a Ford appointee, is 79. Justice Sandra Day O'Connor, a Reagan appointee, is 69. Justice Ruth Bader Ginsburg, a Clinton appointee, is 66 and recently underwent surgery for colon cancer. One cannot, of course, be definite here. Thurgood Marshall served for a decade after many observers thought that poor health would force him to resign. And one does not wish to be funereal. Still, the next president will almost certainly appoint three, maybe even four, justices to what is now a closely divided Supreme Court. He or she will thus significantly shape the course of federal constitutional law for the first several decades of the new century. A turnover of only one or two seats could have major repercussions across a wide range of areas including abortion rights, affirmative action, and the place of religion...

Contempt of Court

T he U.S. Supreme Court's intervention into the presidential election was and is a scandal. Five right-wing justices used the flimsiest of pretexts to block the Florida vote recount. Chief Justice William Rehnquist and Company are typically unmoved by alleged Equal Protection Clause violations (except when the plaintiffs are whites charging so-called reverse discrimination). In George W. Bush et al. Petitioners v. Albert Gore, Jr., et al., however, they created a new right to uniform treatment in ballot counting. Typically, these conservative justices insist that every benefit of the doubt be accorded to state judges interpreting state law. Indeed, they are usually so deferential to state judges that they have been willing even to countenance the executions of prisoners rather than encroach even a bit on the perceived prerogatives of state courts. In Bush v. Gore, however, Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas asserted that the Florida Supreme Court's...