law professor Eric Posner
claims that Supreme Court Justice Anthony Kennedy “is a
libertarian” because “he’s (somewhat) liberal on social issues and
occasionally skeptical of the executive, and conservative on
everything else.” Moreover, Posner argues, “Because Kennedy is so
often the swing vote, it is more accurate to call this court
‘libertarian’ than ‘right-wing.’”
Any discussion of Kennedy’s purported libertarianism has to
start with his positions in the medical marijuana case Gonzales
v. Raich (2005), where he voted in favor of an expansive
reading of federal power under the Commerce Clause, and the eminent
domain case Kelo v.
City of New London, where he voted against the property
owner. These decisions are about as un-libertarian as it gets.
Still, Posner does raise an important point. As I
wrote in a column last year, Kennedy is “the one justice
currently on the bench who at least occasionally favors the basic
libertarian mix of social and economic freedom.” He’s the only
justice who has voted in favor of gays and
while also opposing
Does that make him a libertarian? Not quite, given his larger
record. But I do think it's fair to say Kennedy’s views have helped
push the Court in more of a libertarian direction.
At present, that’s probably the best libertarians can expect
from the high court.