Monday, April 23, 2007

Analyzing Kennedy has this interesting analysis of Anthony Kennedy's new role as swing vote.

Most interestingly, the piece points out that the same sort of moral philosophy (called "paternalistic" by liberals) that guided him to vote to uphold the Partial Birt Abortion Act caused him to write the majority opinion in Lawrence v. Texas.

(I)n the years since Stenberg, Kennedy has staked out some decidedly liberal positions in cases that also seemed to touch on fundamental moral issues. In Lawrence v. Texas in 2003, he embraced gay rights, and in Roper v. Simmons two years later, he said juveniles under 18 should not be executed.

But some don't see any inconsistency coming from a justice who has strong moral views, positions he announces grandiloquently.

"It's pure 'Preacher Tony,' " says University of Cambridge professor David Garrow. "The Anthony Kennedy who is telling unreflective women what's ethically best for them here is, for better or worse, the same Anthony Kennedy who preached to us in Casey about the meaning of life and in Lawrence about the moral necessity of gay equality. There's no doubt that he thinks he's being absolutely consistent."

Liberals didn't question Kennedy's "paternalistic" attitude in those opinions. I guess when the decision goes your way, you aren't insulted by paternalism.