Justice Anthony Kennedy is not a libertarian

Anthony Kennedy

Over the last few years, there has been much discussion about the philosophical leanings of Supreme Court Justice Anthony Kennedy. Long considered a moderate on the High Court, Kennedy has been the deciding vote in many 5 to 4 decisions, leading John Tabin of The American Spectator to note that “[i]t’s Anthony Kennedy’s world; we’re just living in it.”

Some legal scholars have surmised that the Supreme Court may be in some sort of “libertarian moment,” thanks in part to Kennedy. This is not necessarily a new theory. Shortly after the Court issued its decision in Lawrence v. Texas (2003), a ruling that struck down sodomy laws in 13 states based concerns over privacy, Randy Barnett praised Kennedy’s “presumption of liberty” approach.

Kennedy’s ideology was again the topic of discussion in 2012 after he sided with the minorty in National Federation of Independent Business v. Sebelius, in which the majority upheld the individual mandate in ObamaCare.

After the Court’s decision last month in United States v. Windsor, which struck down the federal provisions in the Defense of Marriage Act, Kennedy’s ideological views are, once again, being discussed by legal scholars.

“Anthony Kennedy was appointed by a Republican president, of course, but his jurisprudence is about as libertarian as we’ve had on the Court since before the New Deal. How else do you reconcile his votes in hot-button cases ranging from presidential wartime powers to social issues to campaign finance?” wrote Ilya Shapiro, a senior fellow at the Cato Institute. “Kennedy often frustrates legal scholars, but it’s not fair to say that he lacks a coherent legal theory. He’s a strong federalist who believes in the inherent dignity of the individual — and that constitutional structures protect that personal liberty. Hence his emotional reading of both the joint dissent in the Obamacare case last year and the majority opinion in the DOMA case now.”

Kennedy has been consistent vote for liberty in First Amendment case. He voted to strike down prohibitions on flag burning in Texas v. Johnson (1988). He voted to protect the right to free speech in McConnell v. Federal Election Commission (2003), though he was in the minority. Kennedy would later write the majority opinion striking down campaign finance regulations in Citizens United v. Federal Election Commission (2010).

He’s also been good on the Second Amendment, voting with the majorities in District of Columbia v. Heller (2008), which recognized that there is an individual right to gun ownership, and McDonald v. Chicago (2010), which incorporated that right to the states.

Kennedy wrote the majority opinion in Boumediene v. Bush (2008), which upheld the writ of habeas corpus and struck down the much of the Military Commissions Act of 2006. He’s opposed to affirmative action, siding with the minority in Grutter v. Bollinger (2003).

But Kennedy’s record hasn’t been all sunshine and rainbows. In fact, he’s shown some hostility to very important part of the libertarian philosophy, such a regulation, property rights, and privacy.

In Whitman v. American Trucking Associations (2001), Kennedy joined the majority in upholding parts of the Clean Air Act that gave the Environmental Protection Agency (EPA), which is part of the executive branch, the ability to make law. This has very real ramifications because of the alphabet soup of regulatory agencies and, more recently, President Obama’s recent anti-consumer agenda to combat climate change, which will be enacted by the EPA.

The concept of private property is the basis for libertarian economic beliefs. And yet, Kennedy has been on the wrong side of this issue on a few different occasions, the most well-known of which is Kelo v. New London (2005).

In a case that completely rewrote the Takings Clause of the Fifth Amendment, Kennedy sided with a majority (and wrote a concurring opinion) declaring that it was constitutional for a government to take private property under the pretense of economic development and give it to another private party. This allows a local government to use eminent domain to essentially steal property from one private entity and transfer it to another.

Kennedy also joined the majority in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002) that upheld regulatory takings.

On privacy issues, Kennedy wrote for the majority upholding a law that allows the state to forcibly take DNA samples of when a suspect is merely arrested for a serious crime, such as rape or murder. This decision undermines the Fourth Amendment’s protection against unreasonable searches.

And then there is the Supreme Court’s decisions in Gonzales v. Raich (2005). The decision in this case upheld the New Dea-era interpretation of the Commerce Clause in Wickard v. Filburn (1942), which is frequently looked down upon by libertarians.

In The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, Robert Levy and William Mellor outlined the cases where the Court’s interpretation of the Constitution has gone awry, ranging from the Commerce Clause to property rights to free speech. These cases span back to 1934 and deal with various constitutional questions long argued among legal scholars.

Of the dozen cases that made the list, Kennedy, who joined the Court in 1988, voted for freedom three times (McConnell, Bennis, and Grutter). He twice voted to expanded government (Kelo and Whitman). Levy and Mellow also included “dishonorable mentions.” Only two of these cases were decided while Kennedy was on the Court — and he voted against freedom both times (Tahoe-Sierra Preservation Council and Raich).

This isn’t a matter of purity, for what it’s worth. Not all libertarians agree on every issue that may pop up. It does seem that Kennedy has some libertarian tendencies and he may be, as some have suggested, taking the Supreme Court in a “libertarian direction.” But there is still much in his record to disappoint.

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