Redefining Due Process Analysis: Justice Anthony M. Kennedy and the Concept of Emergent Rights
"While Justice Kennedy has always supported the doctrine of substantive due process, his increasing acceptance of a methodology that gives an expansive interpretation of liberty shaped by evolving societal standards is detailed in Part II. Part III explores various interpretations of Lawrence’s impact on due process analysis by focusing on lower court applications and scholarly analyses of the ruling. Part IV offers an alternative interpretation that is informed by a brief examination of Kennedy’s Ninth Circuit Court of Appeals jurisprudence involving gay rights. This part of the article argues that, rather than jettisoning the tiered review of modern due process analysis, Justice Kennedy may be carving out a new category of rights that are entitled to the Court’s heightened solicitude. These rights may be classified as emergent rights— rights that while perhaps not yet sufficiently well-grounded in history and tradition as to be considered fundamental have nevertheless emerged from “the continuing traditions of our society” or are so closely connected “with interests recognized as private and protected” as to be entitled to more than minimal review. Part IV also recognizes that the disagreement that has evolved between Justice Kennedy and Justice Antonin Scalia over homosexual rights is part of the larger, ongoing methodological debate between adherents of originalism and proponents of a “living Constitution” over the proper method of constitutional interpretation."