Justice Anthony Kennedy, Libertarian?

The latest issue of Time magazine features a cover story entitled “What Will Justice Kennedy Do?” Among other things, the story attempts to make sense out of the fact that Kennedy sometimes sides with the Supreme Court’s more conservative justices while at other times siding with the Court’s liberals. “More and more cases are decided based on his idiosyncratic values,” Time says.

David Boaz of the Cato Institute argues that there might be a better word than “idiosyncratic” to describe Kennedy’s approach:

Justice Kennedy seems to be very concerned with liberty. He often sides with conservatives on economic issues (which are actually never mentioned by Time) and campaign speech, and with liberals on civil liberties, gay rights, and school prayer. Pretty inconsistent, huh?

Or then again, maybe Justice Kennedy has a basically libertarian view of the world and the Constitution. The word “libertarian” never appears in the article. Perhaps it should.

Boaz makes it clear that he isn’t calling Kennedy “a down-the-line, Nozick-reading, Cato Institute libertarian,” but rather is saying that there’s “a strong libertarian streak in Kennedy’s jurisprudence.” I think that’s a fair statement. In addition to the issues Boaz mentions, Kennedy has also cast libertarian-leaning votes against race-based government classifications and in favor of protecting unpopular speech like flag burning. But then again Kennedy also sided with the majority in two of the most notoriously non-libertarian decisions in recent years: Gonzales v. Raich, which upheld the federal government’s ban on marijuana as a valid exercise of congressional power under the Commerce Clause, and Kelo v. City of New London, which allowed New London, Connecticut's abusive use of eminent domain to stand. So while the term libertarian may apply to a nice chunk of Kennedy’s jurisprudence, it unfortunately does not apply to all of it.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    HA HA HA HA (weep, sob, sob) HA HA(sob sob) HA.

    The notion that any of the underwear-searching eminent-domain-taking wheat-snatching new-professionalism-spouting Nazgul are deeply concerned with individual liberty immediately invokes the libertarian gut-punch response.

  • ||

    "Nazgul." That's just about perfect, I think.

  • TELLMOFF||

    I don't respect libertarian judges because they don't respect the most fundamental freedom of all: the right to revenge.

  • ||

    Nazgul? I like it. Nice one Hamilton, I will be using that.

  • Joe R.||

    He's been saving that one.

  • ||

    Nazgul

    -Thread winner +1
    -First post +1
    -New Reason meme for describing supreme court +1

    +3

  • AuH2O||

    He is our new king!

  • Jesus H. Christ||

    +1 on Nazgul. Noice

  • Fist of Etiquette||

    At least he's not a Bill Maher libertarian.

  • Registration At Last!||

    Ah, yes it is time for everyone's favorite libertarian game.

  • ||

    There used to be an insightful blogger that made these points also. I can't remember the name but it started with an 'R'.

    The blog has unfortunately disappeared, and humanity has collectively suffered as result.

  • ||

    URKOBOLD?

  • ||

    URKOBOLD is obsessed with monkeys and anyone who can spell knows there's no 'R' in monkey.

  • Almanian's Evil Twin||

    AHA! But there's an "R" in "Rheesus"!

  • ||

    I never got that peanut butter and chocolate thing.

  • ||

    It was Greg Smith, wasn't it? Libertarians4Freedom? That was a great blog!

  • ||

    I'd actually managed to forget about Greg...until now. What kind of sick, twisted excuse of humanity are you to bring him up again?

  • Almanian's Evil Twin||

    Thanks for sticking that back in my mind.

    GREGOOOOOOOOOOOOOOOOOOO!

    Yes.

  • ||

    "I'm all for libertarianism, but we really should invade Saudi Arabia and Iran immediately, and people who fight the cops get what's coming to them."

  • Almanian's Evil Twin||

    Stop. RESISTING.

  • ||

    Jimbo, it's the pansy-assed "libertarians" like yourself that fuck things up for the rest of us. And it's not invading when we do it in the name of peace or democracy or preferably both.

  • ||

    Is the party crazy over there now that you guys have advanced to the quarterfinals?

  • Proprietist||

    "No True Scotsmen" is when anarchists and miniarchists bicker about which one is more genuinely libertarian or when a person is ruled non-libertarian for a single position that runs counter to libertarian orthodoxy.

    In contrast, Bill Maher is a statist Democrat blowhard who called himself a libertarian to strengthen his anti-Bush credentials because he shared a few opinions about the Patriot Act, Guantanamo and the War with libertarians at the time. Of course, when his own party came to power they weren't that big of a deal anymore.

    Also, Kennedy is a moderate with libertarian tendencies, not a libertarian with moderate tendencies. I also argue Ron Paul is not a libertarian because he is more concerned with maintaining a specific adherence to the Constitution in a manner that does not always result in libertarian policies, especially at the state level, than he is with maximization of liberties for all. But that's probably venturing into No True Scotsmen territory.

  • TELLMOFF||

    Anybody with a yellow streak down their back has the most recognizeable libertarian credential of them all.

  • FD||

    "...Bill Maher is a statist Democrat blowhard who called himself a libertarian to strengthen his anti-Bush credentials because he shared a few opinions about the Patriot Act, Guantanamo and the War with libertarians at the time. Of course, when his own party came to power they weren't that big of a deal anymore..."
    Right on. It needed to be said again. A despicable human being. Imagine you had a million bucks to invest, help, support, entertain, create, aid, and what do you choose to do with it? Piss it down a DNC rat hole for re-electing the empty suit, while speaking about how you "love the guy", somehow rationalizing and forgetting the thousands of soldiers dead on his watch, Guantanemo, hiding behind Air Force 1 during the worst environmental disaster in US history; thumb-twiddling while gas prices spiked higher than ever; whining about somebody else's fault for a dead economy; hurrah-ing a health bill that is unconstitutional on its face... Should we go on? Somebody needs to wake up the HBO moron and remind him we're not referring above to Bush.
    People like Maher are the scum of the earth, applauding presidents and licking their dictatorial shoes, so long as its their party.
    Dumb as a brick, with Jon Stewart right behind.
    Anyway, not that things will be any better with a Romney.

  • robc||

    Bill Maher started calling himself a libertarian while Clinton was president. Want to try again?

  • ||

    So you are saying Bill Maher is a libertarian?

  • ||

    HI GABE HOW YA DOIN GOOD TO SEE YOU GABE HOW ARE YOU GABE

  • Registration At Last!||

    Q: What's been missing from Warty's posts?

    A: The ALL CAPS button.

  • ||

    If you have to wonder how a SCOTUS justice will rule on the individual mandate, they are not a libertarian.

  • Registration At Last!||

    supra

  • affenkopf||

    “a down-the-line, Nozick-reading, Cato Institute libertarian,”

    That's not a libertarian.

  • Registration At Last!||

    supra

  • SIV||

    Not even close. Sounds like a description of a commie-fag.

  • ||

    I thought that is what the Nozick readers say about reason magazine...

  • Proprietist||

    Ron Paul said that state eminent domain laws shouldn't be overridden by the federal courts. He said the same about Lawrence v. Texas re: state sodomy laws. That's one of the reasons I don't consider Ron Paul to be truly libertarian.

    I'd still take Kennedy anyday over the other justices, Thomas included.

  • tarran||

    Your position makes no sense:

    A libertarian can look at Kelo vs. New London and feel that the Federal Government has no authority to overturn the law. The fact that such a ruling permits an unlibertarian outcome in a particular case has no bearing on the legal question as to whether the Constitution grants the federal government that power.

    If he had said Eminent Domain is a neato idea, you'd have a point.

  • ||

    "A libertarian can look at Kelo vs. New London and feel that the Federal Government has no authority to overturn the law."

    Yeah, such an argument could be made, but it wouldnt be a very good one. Fifth amendment and all.....

  • Adam330||

    Does the fifth amendment say something about state government powers? Because I missed that part.

  • DJK||

    In Chicago Railroad Co v. Chicago, the Supreme Court extended Fifth Amendment protections to the state level through the Fourteenth Amendment. So, yes, yes it does.

  • Adam330||

    I know. But you mentioned only the fifth amendment, which does not address the states.

  • DJK||

    I'm saying that the Fifth Amendment does, in fact, cover the states. Not in its plain text, but in the Supreme Court's interpretation of its interplay with the Fourteenth Amendment. This is well-established (since 1897) legal precedent. The Fifth Amendment applies to the states. Period.

  • Juice||

    It does cover the states in its plain text. It's the supreme law of the land. It has pretty absolute language. "No person shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." It doesn't say the federal government can't do it, nor does it say that state governments can't do it. It says that it shall not happen to a person.

  • ||

    Suthenboy - "Fifth amendment and all....."

    Adam330 - "I know"

    If you know, and I assumed you did, why do I have to spell it out?

  • Proprietist||

    The Constitution DOES grant the federal courts that power. "Nor shall any State deprive any person of life, liberty, or property, without due process of law."

    Ron Paul's whole take on the constitution is flawed because he still seems to assume the 10th Amendment takes precedence over the 14th Amendment.

    Take Lawrence, for example. The Texas Supreme Court is only obligated to determine whether Lawrence violates their state constitution. The fact that a Texas law does not conflict with the Texas Constitution and gets upheld by the state court does not mean the Federal Court system has no right to review whether it conflicts with the protections guaranteed to citizens in the US Constitution. This notion that state law is untouchable by federal courts would say that Brown v. Board was an invalid ruling and would invalidate many of the most libertarian court ruling in the countries' history.

  • Adam330||

    Actually, state courts have to consider and apply federal law as well.
    "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

  • DJK||

    True. But there's interpretation to be made in that statement. What constitutes "this Constitution"? Is it just the text of the Constitution itself? It plus the Bill of Rights? It plus every Amendment? That's not entirely clear.

    Standard jurisprudence is that only the Articles of the Constitution extended to the states. Not the Amendments (though many state Constitutions had similar Amendments).

    Proprietist is saying that the line of cases incorporating (after the Chicago gun cases) all of the Bill of Rights to the states through the Fourteenth Amendment is extremely libertarian. And that to do so requires less obedience to the Tenth Amendment, which Paul seems to love.

    I have to agree.

  • TELLMOFF||

    I would like Ron Paul to say that if elected president, he will pardon all federal drug convicts.

  • Juice||

    He's said before that he'd pardon all non-violent drug convicts.

  • TELLMOFF||

    Thanks, I missed that on his website.

  • Tulpa the White||

    Ron Paul said that state eminent domain laws shouldn't be overridden by the federal courts.

    Link? RP certainly didn't favor the Kelo decision.

  • tarran||

  • ||

    Lol, he cares about liberty. How quirky!!!

  • R C Dean||

    Justice Kennedy seems to be very mildly concerned with liberty.

    Ron Paul said that state eminent domain laws shouldn't be overridden by the federal courts. He said the same about Lawrence v. Texas re: state sodomy laws. That's one of the reasons I don't consider Ron Paul to be truly libertarian.

    There may be a touch of "You today, me tomorrow" in Ron Paul's stand on these issues. Namely, a federal government which can intrude on state independence in ways of which you approve is one that can, well, intrude on state independence in ways of which you don't approve.

    In order to decentralize power, you have to let the locals exercise some power. There's a good argument that decentralized power, even though it may be abused, is more liberty-friendly that centralized power.

  • ||

    Or alternatively one could just favor the liberty-based outcome all the time, instead of having to "conceed" things one way or the other.

    I don't buy it that I must choose between local tyranny or federal (with the argument being that one can move away from the local). To me, federalism isn't an end in and of itself, any more than democracy is: it is a means to an end, namely, that of increasing/maintaining liberty.

    To that end, if the feds overturn an anti-liberty law on the state level, the precident it sets for intervention in that area is offset by the fact that the case law itself has now moved in a liberty-friendly direction.

  • ||

    +1

  • ||

    I wonder if the constitution allows for a state to be ruled by a king and all the senators and congressmen it sends to DC being appointed by him.

    Note: this is not an argument against you and RC...only that your discussion prompted me to think about it.

  • Adam330||

    I think that would be hard given the republican clause.

  • ||

    Nah, the method of selecting representatives and senators is laid out in the constitution, so the state couldn't violate that.

    However, I don't think there's anything stating specifically what form of state-level gov't must exist, so I guess in theory you could have a king in the state constitution, but he'd be a pretty weak-ass king since 1) he couldn't interfere with how national gov't elections are held, and 2) he couldn't do anything even within his "kingdom" that violates federal law.

  • Adam330||

    The Constition says: "The United States shall guarantee to every State in this Union a Republican Form of Government..." We can certainly debate what a republican form of government is, but I'm pretty sure a monarchy doesn't qualify.

  • Adam330||

    Also, "No state shall ... or grant any title of nobility." That also makes a king hard.

  • ||

    You can have a constitutional monarchy that uses a republican form of gov't with a king figurehead.

    I completely forgot about the "titles of nobility" part though, which I guess pretty much rules it out.

  • DJK||

    Lol. How about "Czars"?

  • T||

    Ah, we just elect him to a really long term, like 99 years or something.

  • Tulpa the White||

    Made me wonder how the postal service got away with that Elvis stamp with "The King" on it.

  • The Hammer||

    It doesn't say anything about strange women lying in ponds distributing swords?

  • R||

    Listen, strange women lyin' in ponds distributin' swords is no basis for a system of government. Supreme executive power derives from a mandate from the masses, not from some farcical aquatic ceremony.

  • Tulpa the White||

    I think a state with a parliamentary form of govt would be super cool.

  • Tulpa the White||

    Or alternatively one could just favor the liberty-based outcome all the time, instead of having to "conceed" things one way or the other.

    But then you never make any actual progress because libertarians are a tiny minority and not in a position to dictate to everyone else how the law should work.

    It's a swell strategy for a debate club, not in the real world though.

  • Keith3D||

    "Or alternatively one could just favor the liberty-based outcome all the time, instead of having to "conceed" things one way or the other."

    It isn't a theoretical decision. We have a particular federal govt here, we know all about them. Choose to empower them further at your peril.

  • ||

    I would say that one of the primary functions, if not THE primary function, of the federal government should be the defense of liberty. Perhaps no distinction should be made about whom the feds prevent trampling liberty, be it states, private entities, local govts or foreign enemies.

    Dream on, right?

  • creech||

    Eisenhower worked it in Little Rock, no?

  • Almanian's Evil Twin||

    Suthenboy for SCOTUS!

    I believe you are correct, sir - "...Life, Liberty, and the Pursuit of Happiness--That to secure these rights, Governments are instituted among Men...etc. etc. etc." - that's the "why" from the Declaration.

    Which is then bolstered by the "how" of the Constitution - "...in order to form a more perfect Union, establish Justice, insure domestic Tranquility...etc. etc. etc.".

    At least it seems so to me - goummint SHOULD be there to protect liberty. But mostly it does that opposite, as governments are wont to do over time...

  • CE||

    The primary functions of the federal government are:

    1. To take as much of your money as you will allow, to fund the ongoing operations of the federal government.

    2. To borrow or print even more money once the political limit of taxation has been reached, to fund the ongoing operations of the federal government.

    3. To enslave your children when necessary to defend the continued existence of the federal government.

  • Proprietist||

    The Federal Constitution guarantees citizens certain rights to life, liberty and property. A state law takes these things away. Why should the state law stand?

    Especially because even the 10th Amendment explicitly excludes powers forbidden to the states from being within the legal jurisdiction of the states (implying a case for Federal intervention if States tread on rights guaranteed by the Constitution). Combined with the 14th Amendment, the states simply have zero right to tread on anyone's liberty.

  • ||

    The question is defining what counts as a "right" that must be protected.

    I agree with you entirely on this thread, btw, but I'm just giving the counterargument.

    An argument against overruling state anti-sodomy laws can be that there is no right to buggery specifically enshrined in the constitution. This goes to the unfortunate habit of treating any right not specifically mentioned by name as being nonexistant.

    The SC has, however, generally recognized such a right (privacy) as being implied (otherwise why have a 4th amendment at all?), and so such laws get struck down. But the ones who voted against it did so on the basis of not wanting to "invent" rights that aren't in the plain text.

  • Proprietist||

    That's what a nice broad reading of the 9th Amendment solves. But it's also one of my criticisms of the Constitution - I'd rather have far more liberties be explicitly codified than the constitution does currently, and still have a catch-all like the 9th Amendment.

  • ||

    It was a debate the framers had regarding the BoR. Some were afraid that by spelling out some specific rights, it would eventually be assumed that those were the only ones protected.

    People now, even on this website, argue that they were right. I personally think that without the BoR, we wouldn't have more freedom, but rather, we would have long ago lost even the few we still cling to because they're explicitly spelled out.

  • TELLMOFF||

    Good analysis, RC. You have just explained why anarchy is the only solution.

  • R C Dean||

    My pleasure.

  • Brandybuck||

    How long until Banjo responds to this post, about how all I ever do is shit on libertarians?

  • 35N4P2BYY||

    Justice Thomas?!

  • ||

    Looking at Kelo, saying that Kennedy is a Libertarian is like saying "He is a real nice guy, you know, except that one time when he killed and ate a baby."

  • Sudden||

    "He is a real nice guy, you know, except that one time when he killed and ate a baby."

    Leave Warty out of this.

  • ||

    Viggo the Carpathian once helped an old lady cross the street.

  • ||

    That was before his LOTR fame went to his head, right?

  • T||

    No, right before he pushed her over and stole her groceries and cane.

  • ||

    Way to completely miss a Ghostbusters II reference, you dolt.

  • ||

    I hate to say it, but everytime I see VM in a movie, I pop off with, "He is Viggo!" in a fake Generic European accent.

  • ||

    I remember seeing Ghostbusters 2 in the movie theater when I was 7. That was the only time. So fuck you, you unwashed catamite.

  • ||

    Yeah, but you claim to remember seeing it. Therefore you should have caught the reference, you BASTARD.

  • ||

    Is that supposed to be some kind of excuse?

    Unwashed?!?

  • GILMORE||

    Time = ""Not adhering to mindless party-line ideology = IDIOSYNCRATIC!!""

    Also, every knows "Austerity has FAILED!!! FAILED!!!"

  • Aresen||

    Roger Clemens has beaten the lying-to-Congress perjury rap:

    http://newyork.cbslocal.com/20.....ry-counts/

    Sometimes the good not-quite-as-bad guys win.

  • Proprietist||

    I'm of the notion that perjury to Congress should not be a crime whenever the Congress is acting outside of its enumerated powers. Same principle should have also applied to Clinton's perjury. Policing professional sports or politicians' private sex lives is certainly not a power Congress is granted. I also believe private citizens have the right to ignore subpoenas for unconstitutional actions by Congress.

  • Sudden||

    Clinton didn't lie to Congress acting outside it's enumerated powers. His lie occurred to a federal grand jury hearing the merits of Paula Jones' sexual assault case.

  • Proprietist||

    Ah crap - you're right. I was like 12 at the time so I'm not particularly vivid on the facts of the case. I'm probably thinking about somebody else.

  • ||

    yea, exactly. i don't think a sitting (or kneeling or prone or supine) president should be "suable" for stuff that happened outside of office. however, given that one can sue a president for that stuff, if it's a sex harassment case involving sexual advances with an underling, then clearly sexual activity with an intern is highly relevant

    clinton of course got away much more leniently than (for example) furman

    for those who think cops always get the better end of the stick, recall that furman took a FELONY perjury rap for a pretty clearly NON MATERIAL (which means it wasn't perjury) lie (about the use of the "n") word whereas clinton merely took a contempt of court rap for what was CLEARLY and undeniably perjury.

  • CE||

    Lying to a bunch of criminals to avoid prosecution should not only not be a crime, it should be expected.

  • DJK||

    Sorta off topic, but it could be interesting.

    Interesting article on Scalia's apparent reversal since Gonzalez v. Raich. Scroll down about 1/4 way to the relevant section.

    http://www.forbes.com/sites/ar.....eme-court/

  • ||

    Surprisingly, Antonin Scalia writes in a new book, Reading Law: The Interpretation of Legal Texts, that he agrees. Wickard, he writes, “expanded the Commerce Clause beyond all reason” by opining that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.”

    Now that he is old and near dead he figures it out.

  • Proprietist||

    Pandering to his captive audience: out of power conservatives who "realize" how bad overapplication of the Commerce Clause is, at least until they get back in power.

  • DJK||

    I'm not sure. The optimist would like to believe that there is at least some trend toward sane Commerce Clause jurisprudence. Thomas has talked about overturning Commerce Clause cases. If Scalia is doing so as well, maybe the other "conservative" justices could start shifting. Wishful thinking?

  • mad libertarian guy||

    If there is a case which warrants a solid look back at past CC decisions like Wickard and Raich, Obamacare is it. If a desire to overturn Obamacare, even if the consideration is nothing more than political, forces them to do so, good for all of us.

    It's about time we start seeing a bit of rolling back some of the progressive state bullshit done over the last 100 years or so.

  • ||

    yea. i can't stress enough how AWFUL a decision raich was. again, whatever one thinks about the validity of medical MJ, the decision simply DOES NOT COMPUTE.

    growing a weed, on your own property, for your own consumption, consistent with state law somehow is regulatable by the feds as INTERSTATE COMMERCE connected?

  • DJK||

    I don't think we'll see this anytime soon. I could maybe (maybe!) see Thomas, Scalia, and Kennedy toying with the notion of overturning Commerce Clause precedents. But Alito and Roberts? Probably not. The other four need not be considered.

  • Chupacabra||

    If only they had a wise latina to guide the way...

  • ||

    Well after the Ginsburg comment it is safe to say the force to buy insurance provision was struck down...and now this makes it clear that the rest will stand:

    "We do believe it's constitutional, and we ... hope and expect that's the decision the court will render," senior adviser David Plouffe said Sunday on ABC. "We obviously will be prepared for whatever decision the court renders." Administration officials have not wanted to discuss contingency plans to avoid creating the impression that the president is preparing for a high court rebuke.

    http://hosted.ap.org/dynamic/s.....8-16-22-27

    You know Kagan called up Obama and told him the decision.
    My guess is 5 voted to strike down the insurance part but only 4 wanted the whole law struck down.

  • FD||

    Heh, heh. Very conspiratorial but I like it.
    Could go a number of different ways, but not a bad prediction on the ruling.

  • Tulpa the White||

    That would be the absolute worst case scenario. No way the preexisting condition mandate is getting repealed, it's too popular because people are idiots. And then it's hello socialized medicine after the private insurance industry collapses.

    We'd be better off with the whole law upheld or, better yet, with the case dismissed due to standing or some other technicality.

  • DJK||

    Not sure I agree with the statement that upholding the entire law would be better. Seems like that would give Congress power to do just about anything on Commerce Clause grounds.

  • ||

    except the conventional liberal argument for the validity of obamacare does not rest on the commerce clause.

  • DJK||

    I don't think the five "conservative" justices are stupid enough to side with this idea in a written opinion. No - it'll be a ruling on whether the Commerce Clause extends this far.

  • ||

    i disagree but we'll have to wait to see. i think the scotus will strike it down (at least in part) and i think commerce clause issues won't be the reason, at least nowhere near the primary reason(s).

    again, no way to know until the decision comes down

  • The Hammer||

    It would be hilarious if all the pompous bullshit attempts to bully the Supreme Court were to backfire on Team Blue, and Obamacare were to go down in flames 9-0 in a decision that included striking down the Department of Education and the TSA.

  • Juice||

    Even if Wickard is overruled, there's nothing stopping complete inconsistency. They don't care if they are inconsistent. They know what's right and what should be done. And that's what's "constitutional."

  • R||

    There's a better chance that Jesus will descend from the heavens and announce that I am King of the World and that the collective models of Victoria's Secret shall be my harem than that would happen.

  • mad libertarian guy||

    Fucking Massholes.

    THE RESIDENTS of Middleborough, Mass., have had enough. In a state with a storied history of Puritan-inspired prohibitions, they voted 183-50 in a town meeting last Monday to approve a proposal that would, among other things, impose a $20 fine on public profanity, First Amendment be damned.

    Taxachussetts is, for me, quickly becoming the California of the east; a place that I won't go to under any circumstances.

  • ||

    yea. as a former masshole myself, i must agree.

    so much of the law there is due to people like the kennedys, who are the farthest thing from libertarian.

  • ||

    Time doesn't want to validate libertarianism. i agree with the author, that kennedy's decisions do show a libertarian (lower case) streak. it's par for the course that time would find this CONSISTENCY "idiosyncratic" because libertarian doesn't fall into simple team blue or team red.

    there is always a fear that a libertarian(ish) justice will promote his ideology over the constitution and thereby find some penumbras and emanations for the libertarian cause, and that would be awful (from a process angle), but i don't see kennedy doing this.

    i rely a lot on volokh.com and scotusblog for fair minded assessment of scotus cases, and i think from what i have read there, that the bloggers would agree - kennedy has a libertarian streak.

    contrast with, for example, ginsburg who will always find some penumbra or emanation to justify her nearly ALWAYS reflexively team blue. what's ironic, iirc, is that she had strong ties with the ACLU, that ... guns aside, is an organization that pretty fairly promotes liberty (again with multiple exceptions, but especially vis a vis gun rights), but she seems way more reflexively liberal than civil rights proponent

    what's amazing about the system is because of the makeup of the scotus, kennedy has effectively become a one man SUPER LEGISLATOR because it's ultimately him that decides so many 5-4 decisions that have profound impact

  • ||

    Justice Anthony Kennedy, Libertarian?

    That is a fucking joke, right?

    What Hamilton said. None of these fucks give a shit about the individual.

  • Killazontherun||

  • ||

    i don't think it's as bad as it sounds since we have amongst the largest computer using population in the world.

    iow, it would be a lot more meaningful to see that # of requests PER CAPITA (it says germany is second and we are WAY more populous than germany).

  • ||

    Here is another way we are number one
    WE'RE #1 WE'RE #!


    http://arstechnica.com/tech-po.....-requests/

  • ||

  • Gladstone||

    David Boaz? Waiting for his article on how FDR and LBJ were sorta libertarians.

  • Brett L||

    Don't forget Woodrow Wilson, king of the libertarian pantheon.

  • BMFPitt||

    What Will Justice Kennedy Do?

    I think he's kick an ass or two...

    ...on second thought, he'd probably just vote against liberty. Seriously, how can anyone look at his (or any member of SCOTUS) voting record any claim that they're libertarian?

    // I didn't have the slightest clue how to make that possessive, so I just didn't try.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement