Balkinization: <b>The Rise of Libertarian Republicans</b>

The Rise of Libertarian Republicans

This is a follow up to Mark's post. He asks how we should categorize Justice Kennedy. I would say that Kennedy is exactly what Mark thinks he must be-- a modern Republican. But Kennedy is a particular kind of modern Republican. The Southern and Western wings of the Republican Party which took over the Party in the 1980's were not monolithic. They combined social conservatives, religious conservatives and libertarians. It is obvious that although these groups can agree on some things, they will disagree on others.

Kennedy is not a social or religious conservative. He has strong libertarian tendencies and an almost romantic attachment to a notion of personal liberty that he has tried to articulate with varying degrees of coherence in his opinions. When we look at how Kennedy has parted company with Rehnquist, Thomas, and Scalia, it has often been on libertarian grounds-- in first amendment cases and particularly in cases involving abortion and gay rights. Kennedy is, after all, the author of the "sweet mystery of life" passage in Casey that drives Scalia (and other critics of Casey and Lawrence) up the wall.

Libertarians are an increasingly important part of the Republican coalition, particularly among young people. But there is a natural strain between them and social and religious conservatives, (and their discomfort has been exacerbated by the free spending policies of the Republicans in recent years.)

In the future we are likely to see more appointments of judges like Kennedy, not fewer. One reason is that they represent an important part of the Republican intelligentsia. Another is that they are more palatable to Democrats than Ashcroft-style social or religious conservatives. Whether that is a good thing or a bad thing, of course, depends on whether you like Kennedy's politics more than Scalia's.

Posted 11:15 PM by JB [link]

Comments:

For what it's worth, Kennedy didn't break with Rehnquist/Scalia/Thomas on Nebraska v. Carhart, sweet mystery of life or no. He seems to be climbing down from some of his early (reluctantly) pro-abortion positions.

# posted by

Anonymous : 9:40 PM

Though on principle (and given the lack of a health exception) the ruling might have been "easy," it really was on the outer contours of the right to chooose an abortion. It is not too shocking that Kennedy dissented, since many Democrats voted for such a law when it came through Congress.

# posted by