Is Anthony Kennedy the Supreme Court’s “Most Consistent Libertarian”?

Writing at Big Think, Peter Lawler, a professor of government at Berry College and former member of President George W. Bush’s Council on Bioethics, argues that in the wake of the Supreme Court’s ObamaCare decision, Justice Anthony Kennedy has emerged as the Court’s “most consistent libertarian.” Lawler writes:

The most consistent member of the Court, in an important way, is now Justice Kennedy. He is the most consistent libertarian. He's been all about individual liberty—even the Court's role in the expansion of individual liberty over time—on personal or non-economic issues such as abortion, religion, and gay rights.  Now he's the same when it comes to economic liberty—protecting the individual right to choose not to engage in commerce in the ObamaCare case....

Obviously, Kennedy's libertarian consistency isn't perfect, but it has become more consistent over time.

Lawler is right that Kennedy’s “libertarian consistency isn’t perfect,” but I’m afraid he’s wrong to suggest that Kennedy has been “all about individual liberty...when it comes to economic liberty.” This is the same Anthony Kennedy, after all, who joined Justice John Paul Stevens’ notorious 2005 opinion in Kelo v. City of New London, the case which recently appeared on Reason.com’s list of the 5 most unlibertarian Supreme Court rulings still standing. So while Kennedy has cast a number of welcome votes during his tenure on the Court, his record as an advocate of individual liberty also comes up short in some very fundamental ways.

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  • Gladstone||

    Isn't this title pretty much the definition of damning with faint praise?

  • Nyarlarrythotep||

    Yep. You could say that Kennedy's like the best ballet dancer in Galveston, TX.

  • Eduard van Haalen||

    "He's been all about individual liberty—even the Court's role in the expansion of individual liberty over time—on personal or non-economic issues such as abortion, religion, and gay rights"

    Let's see...declaring certain living human beings outside the protection of the law...a win for liberty!

    Reinstating some municipal "gay rights" laws over the objection of Colorado voters, resulting in private businesses and landlords being told what to do with their own business and property...a win for liberty!

    Getting involved in vital questions about religious symbolism in public places...a win for liberty!

    No, in fact, I don't see the libertarianism in any of these situations.

  • JW||

    No.

  • wareagle||

    an exercise in legal navel gazing, particularly since some of Kennedy's votes seem like internal squabbles some libertarians might have.

  • daveInAustin||

    Kennedy voted for Gonzales_v._Raich, which says growing a plant in the middle of your state with no intent to sell it to anyone, much less ship it out of the state, can be regulated as interstate commerce. It's really sad if he's the best libertarian in the bunch. It makes it even sadder that O'Conner and Rehnquist are no longer on the court. Only Thomas' descent got it right: upholding the law means that the powers of Congress "have no meaningful limits."

  • Bill||

    4% libertarian could still be the most libertarian on SCOTUS.

  • A Serious Man||

    Tallest midget.

  • ||

    Where did he vote on Bong hits 4 Jesus?

  • Sudden||

    I believe he wrote a concurring opinion stating Jesus should use a joint instead.

  • ||

    Thomas isn't the most libertarian, but he's probably the justice worth keeping if we picked this court from scratch. His vision of the court as a check on Congressional power, as it was prior to the New Deal is something I could definitely get behind.

  • robc||

    I think Thomas might be the most libertarian. Which shows just how much of a tallest midget contest this is.

  • GlenchristLaw||

    Lawler is right that Kennedy's "libertarian consistency isn't perfect"


    It's always hard trying to unscramble that intellectual omelette known as "American Catholicism."

  • ||

    So while Kennedy has cast a number of welcome votes during his tenure on the Court, his record as an advocate of individual liberty also comes up short in some very fundamental ways.

    This doesn't preclude him from being the Court's most consistent libertarian. It's sort of like looking for the most consistent humanitarian amongst child molesters.

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