Abortion

The Fifth Element

Does Justice Anthony Kennedy practice a "modestly libertarian" jurisprudence?

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"People say I'm a libertarian," Supreme Court Justice Anthony Kennedy once told The New York Times. "I don't really know what that means." Most libertarians would probably agree that he doesn't. In June 2005, for instance, Kennedy joined the majority in Gonzales v. Raich, siding with the federal government against the people of California, who had legalized medical marijuana and thus run afoul of federal anti-drug laws. Later that same month, Kennedy joined the majority in Kelo v. City of New London, voting to uphold that city's controversial use of eminent domain to seize private property for the benefit of the powerful Pfizer Corporation.

In her engaging and carefully researched new book, The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty, political scientist Helen Knowles takes a different view. In her telling, when it comes to free speech, race-based classifications, gay rights, and abortion, Kennedy's jurisprudence actually qualifies as "modestly libertarian," consistent, Knowles argues, with "the basic, fundamental principles" of individualism and limited government. As Knowles is careful to explain, her arguments apply only to those four areas. (Which is a good thing for her thesis, since Kennedy's votes in Raich and Kelo—among other cases—were not even remotely libertarian.) The book's misleading title aside, Knowles makes a strong, though not entirely persuasive case.

Consider free speech. In his concurrence in Texas v. Johnson (1989), Kennedy alienated many traditionalists by finding the state's flag-burning ban to be unconstitutional. Yet as he told an audience of high school and college students in 2002, "governments are most dangerous when they try to tell people what to think."

He brings a similarly individualistic viewpoint to the question of race-based classifications. In his dissent in Metro Broadcasting v. F.C.C. (1990), for instance, Kennedy strongly denounced the government's preferential licensing treatment for minority-owned stations: "Once the Government takes the step, which itself should be forbidden, of enacting into law the stereotypical assumption that the race of owners is linked to broadcast content, it follows a path that becomes ever more torturous."

Furthermore, as Knowles writes, "Kennedy champions individualized equality, rather than group-based equality, regardless of whether the characteristic at issue is race or sexual orientation." That approach was most evident in his landmark majority opinion in Lawrence v. Texas (2003), which struck down the state's sodomy ban as a violation of the liberty protected by the Due Process Clause of the 14th Amendment. "In our tradition the State is not omnipresent in the home," Kennedy wrote. "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."

In his dissent, Justice Antonin Scalia ridiculed Kennedy's opinion, arguing that the Texas legislature's "hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change." Yet as the legal scholar Randy Barnett has noted, Lawrence didn't "invent" anything. It simply "require[d] the government to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow 'fundamental.'" Were the courts to adopt this "presumption of liberty" in other cases of government regulation, Barnett argued, the result would be a "libertarian revolution."

Which brings us to Kennedy's abortion rulings. As Knowles points out, many liberals were shocked in 2007 when Kennedy authored the majority opinion in Gonzales v. Carhart, which upheld the federal Partial-Birth Abortion Ban Act signed by President George W. Bush in 2003. After all, Kennedy was one of the co-authors of Planned Parenthood v. Casey (1992), the decision widely credited with saving Roe v. Wade (1973) from being overturned. What happened?

Knowles argues that whenever Kennedy talks about liberty, he's also talking about responsibility. Abortion, she writes, is for Kennedy "a liberty that is bounded by important state interests—particularly the preservation of fetal life—that permit the state to require the woman to exercise her liberty in an informed and responsible manner."

Knowles identifies this approach in Casey, where Kennedy argued that a pregnant woman cannot "be isolated in her privacy." The lawful decision to have an abortion, he held, must include each woman's consideration of the "consequences for others" and of "her place in society." The state, in Kennedy's view, has a legitimate interest in reminding women of their "place."

Setting aside the question of whether partial-birth abortion should be outlawed, think about the implications of this definition of liberty. Under most versions of libertarianism, individual rights do impose a responsibility—the responsibility to respect everyone else's individual rights. Yet as Knowles herself is forced to admit, Kennedy's language in both Casey and Carhart sounds more like "modest paternalism" than "modest libertarianism." Indeed, what's libertarian about advocating paternalistic (rather than neutral) government oversight?

Still, Knowles has identified (though possibly mislabeled) an important key to understanding one of the Court's most significant members. To put that importance in perspective, consider that in its 2006-2007 term, the Supreme Court decided 24 of 75 cases by a narrow 5-4 margin. In every one of those decisions, Justice Kennedy cast the majority-making fifth vote. As Slate's Dahlia Lithwick put it, Kennedy has established himself as the Court's swing vote, the one "who's going to call the shots in the near future." Thanks to The Tie Goes to Freedom, we now have a much better sense of how he'll call some of those shots.

Damon W. Root is an associate editor at Reason magazine.