Justice Kennedy's Short-Lived Libertarian Revolution: A Brief History of Supreme Court Libertarian Ideology

Abstract

This paper contends that Justice Anthony Kennedy did not initiate a libertarian jurisprudential revolution following Lawrence v. Texas. The article begins with an overview of constitutional fundamental rights jurisprudence and examines similarities with libertarian theory.

The paper then assesses the legal decisions of Justice Kennedy but concludes that Justice Kennedy is not a libertarian. This provides the basis for critiquing Professor Randy Barnett's assertion that Justice Kennedy was the instigator of a libertarian revolution in U.S. Supreme Court jurisprudence. The fact that Justice Kennedy is not a libertarian is apparent from his reasoning in the recent partial birth abortion case, Gonzales v. Carhart. The paper concludes by questioning the practical application of rigid libertarian theory to real-world judicial decision making while, at the same time, expressing concern regarding Justice Kennedy's reasoning in Carhart.

Keywords: Constitutional law, libertarianism, liberalism