The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty.

• Author: Shapiro, Ilya
• Position: Book review

THE TIE GOES TO FREEDOM: JUSTICE ANTHONY M. KENNEDY ON LIBERTY. HELEN J. KNOWLES. ROWMAN & LITTLEFIELD, 2009.

INTRODUCTION I. THE BOOK A. What is Libertarianism? B. Freedom of Speech C. Equal Liberty for Sexual Minorities D. Strict Scrutiny of Racial Classifications E. Abortion: The Libertarian's Hard Case II. ANALYSIS A. General Critique B. Contraindicative Cases CONCLUSION INTRODUCTION

Anyone who has even a passing interest in the Supreme Court knows that, with the departure of Justice Sandra Day O'Connor, Justice Anthony Kennedy became the Court's one and only swing Justice. In the highly charged cases that split on "ideological" lines--with Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito on the "conservative" side and Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer on the "liberal" side--Justice Kennedy inevitably provides the deciding vote. (1) On abortion, gun rights, capital punishment, campaign finance, affirmative action, detention of enemy combatants, and the host of issues that do not make the front pages but do affect millions of lives and billions of dollars, Justice Kennedy's views become the law of the land.

The Supreme Court bar aims its briefing squarely at Ronald Reagan's third choice to fill Justice Lewis Powell's seat on the high court--a practice that has become known as the "Kennedy Brief." (2) And those who follow the Court for a living gamely try to assess how much all those citations to "Kennedy, J." will persuade (or alienate) the Court. Like modern-day Kremlinologists, we all try to discern what each question the Justice asks at oral argument signals about how the Court will rule and on what grounds.

This attention is not unwarranted, particularly in recent years. For example, in October Term 2006--the first full term after Justice Alito replaced Justice O'Connor and thus made Justice Kennedy the definitive "man in the middle'--Justice Kennedy dissented in only two of the Court's seventy-two opinions. (3) What is more, Justice Kennedy was in the majority for all twenty-four of that term's 5-4 decisions, siding thirteen times with the conservatives, six times with the liberals, and five times in less conventional alignments. (4) Although the following year the Court had only twelve split decisions, including the 5-3 Stoneridge (5) case (where Justice Breyer recused himself) but not the two 4-4 results with no voting records released, Justice Kennedy was in the majority in eight--more than any other Justice. Each of these was an "ideological" split. (6) This past term, Justice Kennedy again led the way with majority votes in eighteen of the twenty-three 5-4 decisions (sixteen of them "ideological") and seventy-three of seventy-nine overall. (7)

Still, all this focus on Justice Kennedy probably is not healthy for anyone--not for lawyers or journalists, and not for the Court as an institution or the country more broadly. It is probably not even healthy for Justice Kennedy himself, whose self-regard has likely (and understandably) grown with the outsized role he has come to play.

Yet here I am reviewing a book on Justice Kennedy's jurisprudence, The Tie Goes to Freedom by SUNY-Oswego political science professor Helen J. Knowles. (8) But I am not writing because Justice Kennedy is the most interesting Justice--that would be Justice Scalia. Nor am I writing because Justice Kennedy is the Justice with whom I agree most on jurisprudential theory--that would be Justice Thomas, though even after reading the book I am at pains to describe what Justice Kennedy's global jurisprudential theory actually is. I am not even writing because Justice Kennedy has the most intriguing intellect--that would be Justice Breyer, the Justice from whom I would most like to take a seminar. Having laid my biases on the table, the reason I am writing this review is because the book in question makes the provocative and surprising claim that Justice Kennedy is a libertarian.

Few, if any, observers would assert that Justice Kennedy is a full-throated dyed-in-the-wool libertarian, the ideological equivalent of Professors Richard Epstein, Roger Pilon, or Randy Barnett (or even Judge Douglas Ginsburg or Chief Judge Alex Kozinski). Neither does Knowles argue this. Still few people would label Justice Kennedy "libertarian" in any sense of the word. Knowles's claim is more modest: In "four areas of the law--freedom of expression, equal protection of the law, race-based classifications, and noneconomic, individual decision making and autonomy"--a certain libertarianism infuses Justice Kennedy's jurisprudence. (9) More precisely, Knowles argues that where government and individual interests are equal, Justice Kennedy sides with freedom, much like an umpire awarding the tie to the runner when he reaches the base at the same time the ball does (to extend the baseball analogies that have pervaded our judicial debates of late). The question remains: In what sense and to what extent can Justice Kennedy's judicial record be characterized as focusing "on liberty"?

Part I of this Review will describe the book's arguments. Part II offers a critique of those arguments and reviews cases that seem to belie them. While I remain skeptical that Justice Kennedy is a libertarian other than in a modest or insignificant way--or, if he is a libertarian in some metaphysical sense, that he applies his libertarianism in a consistent and constitutionally sound way--the book is highly educational and informative, and a good read.

1. THE BOOK

   Knowles begins with one of the biggest understatements a Court-watcher could make: Justice Kennedy "has not pleased all of the people all of the time." (10) This includes libertarians, so even as Knowles describes the Justice's jurisprudence as "modestly libertarian," she acknowledges that "he neither has a comprehensive, overarching judicial philosophy, nor subscribes to a jurisprudence that is heavily influenced by political theory." (11) Indeed, much of the book's introduction is a "prebuttal" to the expected charge that Knowles paints her subject with her own wishful thinking. While admitting the Justice's other failures, Knowles emphasizes that "his requirement that governmental actions pass far more stringent tests when they impinge upon liberty in ways that demean the individual, negatively affect a person's dignity, diminish personal responsibility, or treat people in a particular way because of their race is entirely consistent with the tenets of libertarian thought." (12) Knowles's book could thus be about Justice Kennedy's moderation, or his belief in a strong role for the judiciary, but the scope of such review would be limited to the types of cases mentioned above: freedom of speech, equal protection, individual liberty, and privacy rights.

   Justice Kennedy's view of the Constitution seems to merge the opposing camps of originalism and "living constitutionalism." While "the intentions and the purposes of the framers should prevail," accepting "that new generations yield new insights and new perspectives does not mean the Constitution changes. It just means that our understanding of it changes." (13) Knowles further notes that Justice Kennedy "agonizes" over his decisions, and indeed he has said that "the clear legal philosophy of Scalia or Brennan 'does seem to yield them an answer a little more quickly.'" (14) She admits that "even in the areas of the law where the light of Justice Kennedy's modestly libertarian jurisprudence seems to shine brightest, there are occasions when it would appear that the Justice is definitely not giving the tie to freedom." (15) Nevertheless, she presses on with an examination of libertarian first principles and how those principles manifest themselves in Justice Kennedy's judicial philosophy. It is a philosophy, she asserts, that emphasizes tolerating diverse views, preserving and protecting human dignity, and accepting personal responsibility.

   1. What is Libertarianism?

      Knowles begins with an outline of fundamental libertarian--or classical liberal--principles. First, there is "individual self-ownership" or "self-sovereignty," which means individual decision-making autonomy. (16) Second is "bounded liberty"--"not a license to engage in whatever one wants" but rather liberty to act based in a theory of natural rights "whose boundaries are defined by individuals' pre-political liberty jurisdictions." (17) Third is the concept of "limited government," in the Lockean sense that individuals delegate some of their sovereignty--"giving up some individual freedom"--to form a political society that protects their individual rights. (18) Finally, there is the "harm principle," the Millian idea that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will is to prevent harm to others." (19) Those who accept these four principles can then justify the limited government, freedom-maximizing nature of applied libertarianism through pluralistic arguments or through consequentialism--relying upon law and economics notions such as Pareto optimality. Justice Kennedy apparently belongs in the former category and views the role of the courts as enforcing an ordered liberty that does not impose any particular morality or value, not even efficiency. (20)

      After further defining the rule of law as it applies to Justice Kennedy's worldview--especially that "the law must recognize that in each person there is a core of spirituality, and dignity, and humanity, and within that broad general formulation you can begin to define those rights that are fundamental to our own humanity" (21)--Knowles provides an overview of the three libertarian elements of Justice Kennedy's jurisprudence. The first is the "universal" element, which Knowles argues is tied to a belief in tolerance, universal rights, and looking to international law for confirmation of...