Justices of the Supreme Court of the United States and Other Judges:

I hate the use of the terms "activist judge," "passivist judge," "strict constructionalist," and "loose constructionalist," to describe the jurisprudential philosophies of judges especially those that serve on the Supreme Court of the United States because, these phrases are attached willy-nilly based upon a superficial reading of their opinions.
An excellent example of the failure of these terms can be illustrated by Griswold v. Connecticut, 381 U.S. 479; 85 S. Ct. 1678; 14 L. Ed. 2d 510; 1965 U.S. LEXIS 2282 (1965). The majority in the case led by Justice William O. Douglas argued that penumbras" and "emanations" derived from those right explicitly set forth in the Constitution implicitly permitted the extension of those protections to include a "right of privacy." Justice Goldberg, a "liberal" justice concurred with the majority using the protections contained in the Ninth Amendment.

The result is interesting because two of the most "conservative' Justices on the court at the time Justices Harlan II, and Byron White also concurred with the result. In their concurrences with the result Justices Harlan II and Byron White both asserted that the protections provided Due Process Clause of the Fourteenth Amendment extended by implication to cover a right to privacy. Conversely, Justice Hugo Lafayette Black, the intellectual leader of the "liberal bloc" of Justices on the Court at that time dissented from the majority opinion arguing that Constitutional protections could be afforded to a "right of privacy"

I would argue that the same holds true when such language is applied to Justice Kennedy, a blanket characterization of Kennedy fails to thoroughly account for his record as a jurist. A proper study of his jurisprudential philosophy requires that the review be taken beyond cases such Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), or Lawrence v. Texas, (2006), and be extended into cases involving property rights issues such as "eminent domain."

Indeed, conservatives will be saddened by his loss when his voice is no longer heard in cases involving eminent domain and other property issues or issues related to commerce where he adopted a fiscally conservative position. I would argue that a thorough examination of Justice Kennedy’s record demonstrates that he was a highly qualified and thoughtful justice who sought a "middle road." He was for all intents and purposes a maverick who eschewed a rigid party identification.
Where Judges are concern and in particular Justices are concerned, I think that partisans only focus on those cases that serve to advance their points without giving due regard to the precedents that preceded the case at bar.
As Learned Hand pointed out in 1921 in his opinion regarding Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921), the Constitution by its nature is a flexible document, which, can and does readily adapt to the changing needs of the Republic.

Now it is argued that these cases are distinguishable, because they arose under an act of Parliament which was not limited by any Constitution. So, indeed they were, and if our Constitution embalms inflexibly the habits of 1789 there may be something to the point. But it does not; its grants of power to Congress comprise, not only what was then known, but what the ingenuity of man should devise thereafter. Of course, the new subject-matter must have some relation to the grant; but we interpret it by the general practices of civilized peoples in similar fields, for it is not a strait-jacket, but, a charter for a living people. Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921)