Supreme Court

Anthony Kennedy, Libertarian?

Understanding the retiring Supreme Court justice.



What's the best way to describe the legal/political views of retiring Supreme Court Justice Anthony Kennedy? For some pundits, the answer has been to label Kennedy a "libertarian."

As it happens, Kennedy himself weighed in on this very topic back in 2005. "People say I'm a libertarian," Kennedy told The New York Times that year. "I don't really know what that means."

Most libertarian legal experts would probably agree with him. That's because Kennedy joined the Supreme Court in handing the libertarian legal movement two of its biggest defeats in recent memory. In Gonzales v. Raich (2005), Kennedy joined the Court in recognizing a broad congressional power to control the interstate market in medical marijuana, even though the plants at issue were cultivated and consumed entirely within the state of California (and were cultivated and consumed legally under state law). Then, in Kelo v. City of New London (2005), Kennedy joined the Court in affirming that municipality's use of eminent domain on behalf of a private developer working in cahoots with the Pfizer corporation. Not exactly strong evidence of Kennedy's libertarian bona fides.

But things do look a little different when you zoom out and take in the bigger picture. At that point, Kennedy's overall impact on the Court does start to look a bit more libertarian. As I've previously argued, Kennedy stands out in recent years as the one member of the Court "who at least occasionally favors the basic libertarian mix of social and economic freedom."

Sometimes Kennedy even employs explicitly libertarian arguments. In his 2003 majority opinion in Lawrence v. Texas, for example, which struck down that state's sodomy ban, Kennedy repeatedly cited the powerful friend of the court brief filed by the libertarian Cato Institute, which explained why the Texas law was an unconstitutional exercise of state power.

Similarly, when the Supreme Court heard oral argument last March over the constitutionality of the Patient Protection and Affordable Care Act's individual mandate, it was Kennedy whose statements most closely tracked the libertarian legal movement's opposition to the law's unprecedented reach. "Here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act," Kennedy told Solicitor General Donald Verrilli, "and that changes the relationship of the Federal Government to the individual in a very fundamental way."

Kennedy is the only member of the modern Court who has voted in favor of gays and guns while also opposing Obamacare. Libertarians can relate to that.

Over the years, I've seen Kennedy variously described as "libertarian-leaning," "libertarian-ish," "quasi-libertarian," and "modestly libertarian." None of these labels is entirely satisfying, but that's just because Kennedy's jurisprudence was never entirely satisfying. This mercurial justice defies easy categorization.

Related: Justice Anthony Kennedy Is Retiring and All Hell Is About to Break Loose

NEXT: Libertarian Party Adopts New Sex Work Plank, Becomes Only Notable U.S. Party to Endorse Prostitution Decriminalization

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  1. Libertarian and centrist aren’t the same thing.

    1. No shit. This is how you further dilute a philosophy.

      1. And this mentality is why the Libertarian Party will never become anything more than fringe.

  2. Kennedy is the only member of the modern Court who has voted in favor of gays and guns while also opposing Obamacare.

    Kelo is difficult to forgive.

    1. Rooting for Tom Brady, the hoodie, “Robert” and the Patriots is also difficult to forgive.

  3. Justice Kennedy is a conservative but he is not a racist, gay-bashing, misogynistic right-winger so most Republicans didn’t know what to make of or expect from him.

    I expect him to be remember as the justice who enabled the Court to avoid brutal partisan warfare for a time, then precipitated the Court’s enlargement by retiring during the Trump administration.

    1. You are REALLY hateful, aren’t you.

      1. Imagine the hate sex. It would be so raw and primal.

        1. Who’s the other member? lc1982?

          1. Kirkland would imagine lc is Trump, and lc would imagine the Reverend is Hillary. So, in some sense, the act would be Trump and Hillary angrily worming around each other’s crusty skin, ancient orifices, stinky sexual appendages.
            Also is lc1982 one of lc1789’s other dimensional selves?

            1. It’s my not caring enough to remember what year he put in his username.

              1. You’re such cool bad boy, this dimension’s future me.

        2. A hate fuck is more intensive.

      2. You are REALLY hateful, aren’t you.

        Describing someone as ‘not . . . racist, gay-bashing, misogynistic’ is not considered hateful among the educated and civilized.

        Are you from Alabama? Kentucky? Rural Pennsylvania?

        1. “Are you almost done, you uneducated rube?” the Reverend asked the plumber who was kneeling down in front of his toilet. “You got quite a clog here, mister. I’m going to have to get the snake from my truck.” The plumber responded as he stood up. “Well make it quick, clinger. Some of us are too important to waste their time talking to an ignorant yahoo all day.” The Reverend said as he adjusted his ascot. “Listen, mister, I don’t like the way you’re talking to me.” “Well, I’m your better, so too bad for you.” The plumber came within an inch of the Reverend’s face. “How could a smarmy ass like you ever be seen as my better?” The plumber asked. His wrists, alone, dwarfed the Reverend’s scrawny pale arms. The Reverend could smell the unfamiliar scent of sweat and testosterone that permeated from the plumber’s shirt. “Well, I read the New York Times.” The Reverend said as he clutched his ascot. “Do you even know how to read?” The plumber’s hands balled up into a fist. He could easily break the Reverend in half, but he thought better of it. “OK, smart guy” he said “fix your own damn toilet.” The Reverend panicked. He really needed to go to the bathroom. And so he chased down the plumber as he went for the front door. “Wait!” the Reverend called “come back and fix my toilet, you half-educated clinger.” Chasing after the plumber had jostled the Reverend’s intestines and as he spoke his last words he furiously crapped his pants.

          1. And you guys wonder why you have been losing to your betters throughout our lifetimes?

            Guys like this became disaffected, marginalized, inconsequential goobers the old-fashioned way. They earned it.

            1. Please teach me, oh most hate-filled Reverend

              1. Mostly, I am content to wait for stale-thinking yahoos to die off and be replaced by better Americans in our electorate. After a lifetime of inadequacy, lousy education, backwardness, and gullibility, most disaffected right-wingers are beyond redemption. Leaving them to their desolate lives of gobbling street pills, collecting disability checks, talking to Jesus, listening to Kenny Chesney, and cursing progress is customarily the best that can be done.

                1. Agreed. You’re not a good person

                2. My operating theory is that you are a plant by the Trump 2020 campaign, sent out to troll as a caricature of left-liberal, progressitarian thought, stirring up the revenge vote.

                  And for my n=1 sample, its working.

                  Well played Bannon, well played.

                  1. The dumb reverand has been following volokh for a decade. He hasn’t learned to make a cogent argument in 10 years. He probably spends all his friends time getting ball torture from a fat chick as he cries uncontrollably.

                    1. The dumb reverand

                      You should have chosen an education, JesseAz.

                    2. He has friends? I don’t think so.

                3. If “progress” equals “more control of the people”, it ain’t happening on my watch.

            2. Hey man you seem to be commenting on here a lot, you seem to be sacrificing a lot of your anime watching time.

          2. … and as he spoke his last words he furiously crapped his pants.”

            Quoth the good Rev.–

            “Ha! I’ve got you there, rube! An educated man such as I doesn’t wear ‘pants.’ I furiously crapped my trousers! Trousers! you idiot.”

          3. I have to admit, you got me with that twist. I was sure this was going to end up as homosexual erotica. But then again, some folks are into poop, so maybe it still is.

      3. +2 Hitler units

    2. Hey man how is your anime watching going? Really into the whole weibo thing?

      1. I am unfamiliar with anime. Perhaps you could provide a summary.

        1. Schoolgirl rape at playground, motel, etc…

        2. Guy Whose Username Is Anime Character Claims Unfamiliarity With Anime; Further Beclowns Self

          1. Arthur L. Kirkland is an anime character?

            You appear to be confusing (apparently strange) cartoons with an Oscar-nominated lawyer with movie star looks.

            The “L” stands for libertarian, by the way.

            You seem to be an uninformed dope, Citizen X.

            Carry on, clingers.

            1. So, Rev., where did you pick up the notion that middle-school-style name-calling is an adequate substitute for engaging assertions you disagree with?

  4. The guy who brought us Hamdi v. Rumsfeld (not to mention the cases cited in this article) is ‘libertarian’, because that word literally means nothing

    1. There is no denying that Kennedy’s opinion in Lawrence v. Texas is jurisprudential gold. In the very first paragraph he set the table. No libertarian should have any quarrel with that.

      1. I guess I’m of the position that the government’s ability to indefinitely detain citizens is more concerning than states having sodomy laws on their books that are never enforced. I know. I’m weird that way

        1. sodomy laws on their books that are never enforced
          Excuse me, but the fact that I have to have continually look at my security monitors while I brutally hammer my twinks in their ass pussies is both psychically and emotionally taxing. Your dimension sucks.

          1. *physically
            Wow. That’s a new low for me.

  5. Not being a gung-ho conservative or progressive does not make him or anyone else a libertarian.

    1. Faux libertarians have difficulty with the concept you describe.

    2. If yer fer or agin anything that I’m agin or fer, yer not libertarian.

      1. More huntin’ and fishin’? Count me in.

      2. Is anyone completely Libertarian? It seems many agree with aspects of Libertarianism but can’t buy into all of it.

    3. I find all the “is he or isn’t he” beside the point.

      Its a spectrum…on average I’d rather have a SCOTUS full of Kennedy’s than one full of Kagans and RBGs, much as Kennedy disappointed Ls often. Heck, I might even prefer him to Eugene Volokh, given what I’ve been seeing over there.

      It comes down to where was he on the spectrum and where can we expect his replacement to be.

      1. Just got a hip replacement. It was terrible. I wish it upon him.

  6. This mercurial justice defies easy categorization.

    “Moderate conservative”.

    Maybe you’re just bad at categorizing things?

  7. “People say I’m a libertarian,” Kennedy told The New York Times that year. “I don’t really know what that means.”

    He’s not the only one!

    1. Libertarian Moment?

      1. You dropped the ?, bud.

  8. “Anthony Kennedy, Libertarian?”

    What difference, at this point, does it make?

  9. Lol.

  10. Holy shit – I just realized Kennedy’s retiring to join the Weld ticket in 2020.

    1. The framers of the constitution were clever enough to put a minimum age requirement in place for president. They should have put a maximum age restriction in place as well. #NoMoreGeezers

      1. A lot of the longterm growth in life exepectency numbers have been over the last two hundred years. Prior to that, they’d been pretty reliably dreadful for millennia. And while the averages were weighted way-down by the really high infant mortality rates, even the folks that lived to be adults didn’t have a terribly (by modern standards) rosy outlook.

        That said, the old almost always rule over the young, so I’m not sure that, even if they had anticipated large numbers of Americans being relatively healthy in their 70s, they would have sought to disenfranchise them. After all, they themselves were most likely to be in that group.

        1. Ike was the first president to turn 70 in office (at the end of his second term), Ronnie was the second, and Donald is the first to start things off in his 70s, so the founders had plenty of cushion to put a cap in place.

        2. The minimum age should be 35, and the maximum age should be 35, and there should be an mandatory 18 month waiting period after registering.

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    2. GRANDPA BOOMER: “Well, look, another of those nice Kennedy brothers must be running again. That takes me back…yeah, I’ll vote Kennedy.”

      1. “And Tuesday Weld is hot, I just hope the stresses of office don’t make her age prematurely.”

  11. If the headline asks a question?

  12. I don’t know if Kennedy is a libertarian. I know that I am a libertarian and if I ever become a judge, many of my decisions will not be very libertarian. There are libertarian and non-libertarian aspects of our constitution and of our laws. Ideally, a judge is not informed by his political preferences.

    1. Ideally yes, though like many judges, Kennedy managed, I think, to vote his ideological preferences in many cases.

  13. The question to settle this debate is, though, is Kennedy open borders or closed borders?

    1. Answer this question: Are our borders currently “open” or “closed”

      1. And don’t confuse “open immigration” with “open borders”, as many do.

  14. “Kennedy is the only member of the modern Court who has voted in favor of gays …”

    Progressitarian Moment!

    Nothing says “Liberty” quite like voting in favor of an identity group.

    “You, identity group, you win!”

  15. “Kennedy is the only member of the modern Court who has voted in favor of gays…”

    Yes, libertarians believe in the right of two men or women to get married. We also do not believe in nine lords ruling over citizens and usurping legislative power. Reasons lurch toward progressive collectivism continues, where the ends justify the means.

  16. For some pundits, the answer has been to label Kennedy a “libertarian.”

    For many progressives, who make up most of the chattering class, Kennedy fits their misconception of a libertarian.

  17. The only libertarian Kennedy I’be ever heard of is the VG from MTV. Speaking of which does she still have her show on Fox?

  18. Good grief. Kennedy was little more than the ayatollah of the United States, deciding for all people what the social mores should be. He was no libertarian – he simply agreed with some conclusions of some libertarians and decided to push those conclusions down on all the country.

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