Supreme Court

Is Justice Kennedy 'Libertarian' When He Agrees With Justice Ginsburg and 'Paternalistic' When He Doesn't?

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SCOTUS

New York Times legal writer Adam Liptak reports that Justice Ruth Bader Ginsburg "sees an inconsistency" between the Supreme Court's "gay rights rulings" and its "cases involving gender." In the former cases, says Liptak, "the court uses the soaring language of 'equal dignity' and has endorsed the fundamental values of 'liberty and equality.'" But in the latter cases, according to Ginsburg, "the court has never fully embraced 'the ability of women to decide for themselves what their destiny will be.'" The main explanation for the inconsistency, Liptak says, seems to be Justice Anthony Kennedy, who tends to provide the fifth vote in closely divided decisions. Liptak writes that "legal scholars say his jurisprudence is marked by both libertarian and paternalistic impulses, ones that have bolstered gay rights and dealt setbacks to women's groups."

Although I am not exactly eager to defend Kennedy's libertarian consistency, this analysis seems wrongheaded to me. In the gay rights cases to which Liptak refers, the Court struck down a Colorado constitutional amendment forbidding local bans on discrimination against homosexuals (Romer v. Evans, 1996), a Texas law criminalizing sodomy (Lawrence v. Texas, 2003), and a federal law barring recognition of state-sanctioned gay marriages (U.S. v. Windsor, 2013). All three of these decisions involved challenges to state actions (although the Colorado case indirectly involved private discrimination as well). By contrast, the "cases involving gender" mentioned by Liptak dealt with "equal pay, medical leave, abortion and contraception." The Court upheld a government restriction on individual freedom in one of those rulings: Gonzales v. Carhart, the 2007 decision deeming the Partial Birth Abortion Ban Act constitutional. In the other three "gender" decisions, the Court rejected government restrictions on individual freedom. So in what sense does the latter set of cases illustrate the impact of Kennedy's "paternalistic" impulses, as opposed to his "libertarian" impulses?

Why is it "paternalistic," for example, to say the Religious Freedom Restoration Act bars the Obama administration from forcing employers to provide health insurance that covers forms of birth control to which they object on religious grounds? Whether or not the Court's reading of the statute is correct, the result is, if anything, libertarian, freeing some people from one aspect of an unjustified legal mandate (albeit for reasons that are arguably troubling).

A clue to this puzzle can be found in Ginsburg's claim (paraphrased by Liptak) that "the court's five-justice conservative majority, all men, [does] not understand the challenges women face in achieving authentic equality." In Ginsburg's view, "authentic" equality requires more than equal treatment under the law; it requires the forcible reallocation of private resources to pay for demands such as contraception, higher pay, and maternity leave. This vision can be described in various ways, but "libertarian" is not one of them.

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  1. Ginsburg is projecting because that is what proggies do. The only “paternalistic” viewpoint comes from her camp in assuming that women are either too weak or too stupid to handle decisions such as contraception without the benevolent hand of govt. If she truly believed in “the ability of women to decide for themselves” she would jump off the nanny state bandwagon. But she doesn’t, so she won’t.

  2. “the Religious Freedom Restoration Act bars Congress [etc]”

    No, the Religious Freedom Restoration Act was passed *by Congress itself.* It operates to block HHS from enforcing its contraceptive mandate against conscientious objectors.

    1. Thanks for catching that. Corrected now.

      1. Ce n’est rien.

  3. I am skeptical of prog analysis about “inconsistent” positions by libertarians and conservatives. As bears repeating, the Haidt studies confirm what should be obvious – progs have more difficulty understanding the conservative point of view than conservatives/moderates have in understanding the prog point of view.

    Generally, when progs scream “inconsistency! hypocrisy!” it just means they simply don’t understand the point of view of the person they are criticizing. “Inconsistency” generally translates to “inconsistent with *my* views.”

    1. I liked how when that book was published, instead of a bunch of chest-thumping, conservatives mostly just yawned and said “no shit.”

    2. ur right, its vry difficlt to understnd the twizted logic wich defnds racist and sexist oppression as liberty.

      1. F-. I award you no points, and may god have mercy on your soul.

      2. It’s really not that hard to understand liberals.

    3. I see lots of inconsistency from Scalia. He’s probably the most likely justice to contradict himself in different cases.

    4. “…progs have more difficulty understanding the conservative point of view…”

      If by ‘have trouble understanding’ you mean ‘don’t have a fucking clue’ then you are correct.

  4. It’s ‘paternalistic’ if you view everything in terms of a bad family dynamic. Some people push for ‘free’ birth control and ask the state/Mom. But suddenly Dad (the courts) step in and say you have to be responsible.

    I’m not saying this is an accurate account of what’s going on. I just think that’s a really common, childish interpretation of the Hobby Lobby ruling (mostly based off of garbage leftist articles and facebook memes).

  5. It should be embarrassing to the NYT that their “legal writer” only views cases through the lens of impacted parties rather than legal principles. Should be, but isn’t.

    1. You assume the people at the NYT still have the capacity for shame. How cute.

      1. I believe some of them are ashamed to be descendents of white people. Since it is assumed that every person with sufficiently low melanin likely spent their leisure time whipping slaves while giggling in glee.

    2. This.

      It’s principals, not principles. All then fucking way down.

      1. Took me a second to get that. Well put.

    3. It’s a bit more jaw-dropping when the writer is using the logic of a sitting Supreme Court justice.

  6. Oh how I wish that Janice Rogers Brown had been put on the court by Bush to smash at least this one retarded argument. Also she is far better than Roberts and Alito anyways.

    1. she is far better than Roberts and Alito anyways.

      That bar is so low it would require James Cameron to find it.

      1. Music On!

    2. I think that’s why they tried to block her appeals court nomination.

      They keep a black woman born under Jim Crow from the high court, then they complain that the conservative judges are “white men” – come to think of it, maybe a Justice Brown would be considered an honorary white person like Justice Thomas.

      1. And then the Left could use distasteful references to both lynching/hanging and burning at the stake!

      2. That is by design…

  7. This vision can be described in various ways, but “libertarian” is not one of them.

    Paternalistsic? Maternalistic?

    Either way, Ginsburg has a fig leaf of credibility to hide that mass of jackbooted projection she’s carrying.

  8. Kennedy’s seeming inconsistency could also be because he’s a gay man and may bring a smidgeon of personal bias to the table. I know, it’s unthinkable that the honorable jurists of the supreme court would ever do such a thing. But I mean, it’s possible.

    1. Scratch that. Why did I think Kennedy was gay?

      1. Well, you never know. Maybe he’s on the DL.

        1. +1 Airport Men’s Room Wide Stance Foot Tap

      2. Wow. You got the libel cease and desist letter in under four minutes?

        The NSA is on their toes today!

        1. No sheep were harmed in the making of that cease and desist letter, right?

  9. Typically, the NYT gets it backwards.

    Justice Kennedy is ‘Libertarian Paternalistic‘ When He Agrees With Justice Ginsburg and ‘Paternalistic Libertarian‘ When He Doesn’t

    is much closer to the truth.

  10. Wasn’t Ginsburg born sometime in the late Triassic? If anyone on that panel was able to see that women are AS accepted as equals by men as men are accepted by women in 2014 someone who was around when they invented the locomotive.

  11. “authentic” equality requires more than equal treatment under the law; it requires the forcible reallocation of private resources

    That was nobody’s argument in that case, you nutjobs. Besides, white men have been doing this for centuries, to the extent of stealing whole continents. Now all of a sudden it’s a bad thing. How convenient!

    1. Libertarianism was created in 2012, in an effort to provide philosophical support to Hobby Lobby.

      So sayeth the Ministry of Truth.

    2. Nobody was making that argument! Now, let me make that argument…

    3. So these cases were about decriminalizing equal pay, medical leave, abortion, and contraception, Tony?

    4. That was nobody’s argument in that case, you nutjobs.

      That was precisely the argument in that case, albeit not in so many words. requiring private parties to pay for anything is forcible reallocation of resources.

      Besides, white men have been doing this for centuries, to the extent of stealing whole continents.

      It was (a) either wrong then, and wrong now, or (b) perfectly alright then, and alright now.

      Pick one.

      1. It’s a fact of life and it’s highly unfair to let the owners of all the ill-gotten spoils pack up and go home and tell everyone else they get to enjoy the splendors of a free market. Redistribution IS community, and always has been. There was never a notion that communities shouldn’t pay for some things communally until certain politicians decided they could get elected by exploiting people’s fear that their tax money might somewhere, somehow afford “those people” an uppity lifestyle they didn’t deserve.

        1. It’s a fact of life and it’s highly unfair to let the owners of all the ill-gotten spoils pack up and go home and tell everyone else they get to enjoy the splendors of a free market.

          What “ill-gotten spoils” are you babbling about, you fucking retard?

        2. Redistribution IS community, and always has been.

          Wow.

          Just, wow.

          In Tony’s world, communities have no voluntary commerce, no acts of love or charity, no simple decency and civility.

          Merely force.

      2. Spot on.

        Also, lefties: please understand that when you say “Bush did it too!” you are ENDORSING Bush, not defending something on practical or moral grounds.

        Lastly, raise your hand if you were a continent-stealing white guy centuries ago. Nobody? Well, then, fuck you again Tony.

    5. Nobody stole a whole fucking continent.

      And we’ve had a problem with slavery for a VERY long time.

  12. Justice Kennedy has no convictions. His opinions are completely inconsistent from one to the next. He and Roberts are fucking ridiculous people.

  13. I think there are certain leftists who honestly do not understand the difference between an employer saying “I won’t let you buy that on the company’s credit card” and the government saying “I won’t let you buy that at all”. They are not very bright, of course but I believe they actually think that way.

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