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.