Hobgoblins On The Bench

I'm not sure I can agree with Ian Millhiser at TP that Justice Kennedy's "recent claim to care about judicial restraint is, at best, entirely inconsistent with his record on the Court."

First of all, I find calling people out for inconsistency--and its twin, hypocrisy--to be uncompelling these days.  As I said a while back:

It's really lazy, disingenuous and counterproductive to call somebody a hypocrite.  Sure, if you apply your own worldview as a template, it may seem there are contradictions in the other's positions, but it cuts both ways.  You have to recognize that people are operating under different assumptions and circumstances.

Here's an example I used recently.  I don't see any contradictions in Republicans' claiming to support small government while wanting to ban abortion.  I don't think anybody would see hypocrisy in their support for bans on murder, and since they view abortion as murder, they are being absolutely consistent.

Along those lines, perhaps to my eyes with my assumptions in place Kennedy could appear to contradict himself.  Yet while I don't know his actual motivations, I see a consistency in his rulings.

He errs on the side of protecting individual freedom in areas like abortion, gay rights, and the death penalty, which makes sense to progressives.  And from where he sits, I guess he similarly rules in areas where we clearly disagree, like corporate "speech" and "liberty of contract" and whatnot.  I don't think corporations deserve such deference, but I can totally understand how to somebody who believes in the power of markets (more than government regulation) and economic freedom (as opposed to something more like economic justice), it's completely consistent.

So yeah, if he values different things than I do, he might not like Obamacare's individual mandate, which he sees as an overstep of Congressional authority.  And he might not like equal pay provisions because the legislature is interfering with the employer/employee contract.  And he might see any restrictions on corporate election spending as infringement on the right to speech.  I'd certainly call him wrong on those issues, but not inconsistent or hypocritical.

Not sure labeling people thus is very constructive or useful analysis.

ntodd