Despite his generally conservative record of decisions on the bench, three sources familiar with Kethledge’s reasoning and judicial philosophy have raised concerns with Breitbart News over his tendency, not unlike his one-time boss Justice Kennedy, to resort to sweeping moral judgment, rather than constitutionally-mandating restraint, in reaching his opinions.
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This emphasis on moral considerations over constitutional originalism can be seen in one of Kethledge’s opinions,
United States v. Gabrion ... Both a concurring opinion and the dissent criticized Kethledge’s use of moral considerations in determining whether the jury should have been able to hear evidence about how, if the murder had taken place nearby, outside of the national forest, Gabrion would not have faced death.
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In
Tyler v. Hillsdale County Sheriff’s Dept., all 15 judges of Kethledge’s court reheard an earlier panel decision and
ruled 9-6 in favor of Clifford Tyler ...Kethledge had the option of joining one of several pro-gun opinions, including a heavily “original meaning” focused one which criticized the controlling opinion in the case for “giving little more than a nod to the originalist inquiry.”
But Kethledge instead joined the Sutton opinion, which focuses largely on the injustices endured by the mentally ill, criticizing the government for tacking too close to “the unfair generalizations that once applied to individuals with mental health challenges” in its arguments.
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The implications of Kethledge’s decision to join Sutton’s
Tyler concurrence are uncertain, but may suggest a judicial philosophy on the Second Amendment that stands at odds with the originalist direction paved by Justice Antonin Scalia when he crafted the
Heller decision.
