"I really don’t think Justice Kennedy has any idea at the moment how he’s going to vote"

Those questions fit neatly within one strain of Justice Kennedy’s understanding of liberty, one he discussed at length last year in an opinion for a unanimous court.

Advertisement

Limiting federal power, he wrote, “protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

The case concerned a federal prosecution of a domestic dispute. Mr. Clement was the lawyer on the winning side.

But there is another strain to Justice Kennedy’s conception of liberty, one that may help Mr. Verrilli. “When you think about liberty relative to Kennedy,” Professor Knowles said, “the element most important to him will be the idea of individual responsibility. He thinks the government has the power to ensure that the responsible exercise of liberty be done in an educated manner.”

That impulse seemed to inform the most closely scrutinized exchange on Tuesday.

Join the conversation as a VIP Member

Trending on HotAir Videos

Advertisement
Advertisement
Advertisement