Well, fair enough — as Garry Wills says, riding people out of town on a rail is as “American” as declaring inalienable rights.
Before I get to my point, let’s remember about how the author of this hagiography evaluated the justice who wrote the opinion in Korematsu II that history will actually treat well:
Sonia Sotomayor, the Bronx judge at the top of most shortlists, was briefly married in college and never had children. In his woefully under-reported “The Case Against Sotomayor,” the New Republic’s Jeffrey Rosen quotes an anonymous source alleging that she is a “bully” and “not all that smart.” Also included in this damning portrait: “Her former clerks report that because Sotomayor is divorced and has no children, her clerks become like her extended family—working late with her, visiting her apartment once a month for card games (where she remembers their favorite drinks), and taking a field trip together to the premier [sic] of a Harry Potter movie.”
Moving right along, I’ll write this up in more detail at some point, but I think this frequent way of characterizing Kennedy is very misleading and worth some pushback:
“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” Kennedy wrote in his 1992 decision upholding the core of Roe. The late Justice Scalia ridiculed this as the “sweet mystery of life passage”; and it seemed to reflect the judicial vision of the liberal legal philosopher Ronald Dworkin rather than James Madison. It was hard, in other words, to root in the text or original understanding of the Constitution. But it represented the core of a libertarian jurisprudence—one book about Kennedy is called The Tie Goes to Freedom—that deserves respect for its refusal to abide by partisan political labels, and for its devotion to keeping the government within the limits defined by the Constitution.
The “libertarian” label is often given to Kennedy, but it’s not really correct. His Fourth Amendment jurisprudence, for example, was awful, worse than Scalia or Thomas. “Libertarianism” doesn’t really account for why he was willing to rule the Affordable Care Act unconstitutional but finished his career with a big ¯\_(ツ)_/¯ to Donald Trump’s racist authoritarianism. As Mark Tushnet has argued, the right way to see Kennedy is “country club Republican.” He was slavishly pro-business — Janus being issued on the last day of his tenure is perfect for the author of Citizens United for sure. He was liberal on a few social issues educated Republicans outside the South used to be more liberal on. He is highly supportive of the powers of local law enforcement. He likes to think of himself as racially egalitarian but in practice is much more concerned about being called racist than doing anything about racism. It’s a familiar enough type “libertarian” doesn’t really capture.
But even more problematic is the implication that Kennedy wasn’t partisan. Paul observed recently that the path to Supreme Court with a majority 80% nominated by presidents rejected by the public was paved by one of the worst decisions in the history of the Supreme Court. This decision goes unmentioned in Rosen’s piece, natch, but let us not forget that while he was too chickenshit to put his name on it Bush v. Gore was by all accounts excreted by the chambers of Anthony Kennedy. This wasn’t even the “high” partisanship typical of a Supreme Court justice — adopting the general constitutional values of the party — but just the Mitch McConnell variety. And it wasn’t a one off — he ended his last term as Hamlet on partisan gerrymandering but George Wallace on the racially discriminatory disenfranchisement of voters needed to keep a minority coalition in power. He was a country club Republican, right down to the timing of his retirement.