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Justice Kennedy the….Libertarian

The Cato Institute’s David Boaz teases the venerable Time magazine about its cover story on Justice Anthony Kennedy’s supposedly inscrutable jurisprudence. (Time is a survivor – it’s really the only remaining newsmagazine of its kind; it’s fared far better than rival publications.)

Massimo Calabresi and David Von Drehle write in that magazine that

Efforts to fit Kennedy’s major opinions into a clear, coherent philosophy have met with little success. He generally sides with the court’s conservatives but is not tethered to any particular constitutional doctrine. “There is no grand unified theory for Justice Kennedy’s jurisprudence,” says Viet Dinh, a leading conservative court watcher….

More and more cases are decided based on his idiosyncratic values.

As Boaz observes, those idiosyncratic values wouldn’t seem so idiosyncratic if one simply called them libertarian, that is, as a part of a jurisprudence grounded on liberty:

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.

And it’s not like the idea of Justice Kennedy’s libertarianism is a deep, dark secret. The writers might have consulted Helen Knowles’s book The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty. Or Frank Colucci’s book Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty. Or Randy Barnett’s Cato Supreme Court Review article on the Texas case, “Justice Kennedy’s Libertarian Revolution.”

Libertarianism can take heart from this story for two reasons. First, libertarian ideas are influential (after all, Calabresi and Von Drehle see Kennedy’s vote as a decisive one). Second, libertarian ideas are influential even if they’re not called libertarian.

Not a bad position in which to be, all considered.

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