Judging Justice Kennedy

Northwestern University law professor John McGinnis has an interesting review of Frank Colucci's new book Justice Kennedy's Jurisprudence in today's Wall Street Journal. As McGinnis reports, Colucci identifies Kennedy's "moral reading of the Constitution" as the key to understanding his votes on the Supreme Court, arguing that Kennedy "sees the document as an unfolding story of ever greater individual liberty":

Most valuably, Mr. Colucci shows Justice Kennedy's judicial philosophy to be a deeply rooted one and not, as one might suspect, the result of varied decisions that require a casuist or law professor to make coherent. He unearths a speech from 1986 in which Justice Kennedy (then an appeals-court judge) criticized Bowers v. Hardwick, a case in which the Supreme Court upheld a conviction for sodomy. At the time the judge did not argue, as others had, that the decision violated the right to privacy minted more than a decade before in Roe v. Wade. He argued instead that the liberty interests of gay Americans had been breached. In 2003, the court overruled Bowers v. Hardwick, and Justice Kennedy wrote the majority opinion using the rhetoric of liberty rather than privacy.

Rest here.

Political scientist Helen Knowles makes a similar point about the intellectual coherence of Kennedy's views in her book The Tie Goes to Freedom: Anthony M. Kennedy on Liberty, which I reviewed back in March. As Knowles provocatively argues, when it comes to free speech, race-based classifications, gay rights, and abortion, Kennedy's jurisprudence qualifies as "modestly libertarian." But Kennedy also voted to uphold New London, Connecticut's disastrous use of eminent domain in Kelo v. City of New London and sided with federal anti-drug enforcement over state medical marijuana legalization in Gonzales v. Raich, both of which place pretty severe limits on his respect for liberty.