The latest issue of
Time magazine features a cover story entitled “What Will
Justice Kennedy Do?” Among other things, the story attempts to make
sense out of the fact that Kennedy sometimes sides with the Supreme
Court’s more conservative justices while at other times siding with
the Court’s liberals. “More and more cases are decided based on his
idiosyncratic values,” Time says.

David Boaz of the Cato Institute argues that there might be a
better word than “idiosyncratic” to describe Kennedy’s
approach:

Justice Kennedy seems to be very concerned with liberty. He
often sides with conservatives on economic issues (which are
actually never mentioned by Time) and campaign speech, and
with liberals on civil liberties, gay rights, and school prayer.
Pretty inconsistent, huh?

Or then again, maybe Justice Kennedy has a basically libertarian
view of the world and the Constitution. The word “libertarian”
never appears in the article. Perhaps it should.

Boaz makes it clear that he isn’t calling Kennedy “a
down-the-line, Nozick-reading, Cato Institute libertarian,” but
rather is saying that there’s “a strong libertarian streak in
Kennedy’s jurisprudence.” I think that’s a fair statement. In
addition to the issues Boaz mentions, Kennedy has also cast
libertarian-leaning votes against race-based
government classifications and in favor of protecting
unpopular speech like flag burning. But then again Kennedy also
sided with the majority in two of the most notoriously
non-libertarian decisions in recent years: Gonzales
v. Raich, which upheld the federal government’s ban on
marijuana as a valid exercise of congressional power under the
Commerce Clause, and Kelo v.
City of New London, which allowed New London,
Connecticut’s abusive
use of eminent domain to stand. So while the term libertarian
may apply to a nice chunk of Kennedy’s jurisprudence, it
unfortunately does not apply to all of it.