Is Justice Kennedy Libertarian?

Early last year, Cato hosted a book forum for Helen Knowles’s The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty. This really is a remarkable book, with an ambitious goal: trying to make coherent sense of the oft-frustrating “swing justice.” And now I have a lengthy review of it that just came out in the latest issue of the Harvard Journal of Law & Public Politics (where Bob Levy also has an essay, on the aftermath of District of Columbia v. Heller).

Knowles makes the provocative argument that Justice Kennedy’s jurisprudence is “modestly libertarian.” I think that this argument, in the limited ways Knowles makes it — with respect to free speech, equal protection, and individual dignity — is probably sound. Still, that deduction is a small discovery considering the broad swath of Supreme Court jurisprudence. Moreover, it says little about whether Kennedy is faithful to the Constitution, which is a stronger measure of libertarianism (as Randy Barnett described at Cato’s 2008 Constitution Day Conference in his B. Kenneth Simon Lecture in Constitutional Thought, reprinted in the latest Cato Supreme Court Review).

Here’s how I conclude:

Good on speech and race, bad on government power, and ugly on abortion and the
death penalty, Justice Kennedy is a sui generis enigma at the heart of the
modern Supreme Court. However new Justice Sonia Sotomayor affects the
Court’s dynamics, it is unlikely that Justice Kennedy will shift from his role
as the deciding vote in most controversial cases. Helen Knowles has thus
done us a great service in deconstructing Justice Kennedy’s faint-hearted
libertarianism and helping us better understand the “sweet mystery” of his
jurisprudence.

For details on how I reached this conclusion, read the full review (which you can also download from SSRN). I should add that Knowles’s book is more useful to us Court-watchers than Frank Colucci’s Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty — whose shortcomings I won’t detail but instead refer you to Eric Posner’s thoughtful critique.

CP: Cato's blog

First Amendment for Me, But Not for Thee

A high school newspaper in Manhattan recently added a new and prestigious editor to its staff: Supreme Court Justice Anthony Kennedy. Adam Liptak of the New York Times reports:

It turns out that Justice Anthony M. Kennedy, widely regarded as one of the
court’s most vigilant defenders of First Amendment values, had provided the
newspaper, The Daltonian, with a lesson about journalistic independence. Justice
Kennedy’s office had insisted on approving any article about a talk he gave to
an assembly of Dalton high school students on Oct. 28.
Kathleen Arberg, the
court’s public information officer, said Justice Kennedy’s office had made the
request to make sure the quotations attributed to him were accurate.

The justice’s office received a draft of the proposed article on Monday and returned it to the newspaper the same day with “a couple of minor tweaks,” Ms. Arberg said. Quotations were “tidied up” to better reflect the meaning the justice had intended to convey, she said.

I’m all for being tidy — and, for all his faults, Kennedy has indeed been friendly to the First Amendment (if not to student speech rights in the “Bong Hits for Jesus” case, Morse v. Frederick) – but public figures don’t usually get to change a story to “better reflect” the intent of their words.

Frank D. LoMonte, the executive director of the Student Press Law Center,
questioned the school’s approach. “Obviously, in the professional world, it
would be a nonstarter if a source demanded prior approval of coverage of a
speech,” he said. Even at a high school publication, Mr. LoMonte said, the
request for prepublication review sent the wrong message and failed to
appreciate the sophistication of high school seniors.

While this is hardly a major scandal — and it’s not unusual for justices to exclude the press entirely from public appearances — Kennedy’s use of a judicial editor’s pen does support the general feeling that students don’t always get a fair shake when it comes to their constitutional rights. As I said about an unrelated case in which Cato filed a brief last week (quoting the landmark Tinker case), students shouldn’t have to “shed their constitutional rights to freedom of speech… at the schoolhouse gate” — especially when a man charged with protecting those rights comes to talk to them about the importance of law and liberty.

H/T: Jonathan Blanks CP: Cato's blog