The author states: “Kennedy’s freedom-first synthesis did not succeed in supplying it. Instead, our age of opioids and suicide and sterility…… strongly indicates that his neoliberal model needs correction.”
Oy vey. Poor Justice Kennedy. Little did he know that when he effectively voted to preserve a woman’s right to choose, and that states can’t keep gays from marrying, he set in motion the opioid epidemic, the avalanche of suicides, and of course sterility.
I was hoping the author would explain how a Constitution originalist would have prevented the opioid epidemic, the suicide rate, and of course sterility by overturning Roe and allowing states to restrict marriage to heterosexuals. I didn’t know how powerful originalism was.
17
We need to be rid of the electoral college. An obsolete institution mainly created to preserve slavery.
The E C is how it continues to be possible that a voter in a state like North Dakota's vote counts 70 times MORE than mine in California.
Fun FACT: There are more people in Los Angeles, than in Both Dakota's, Montana, Utah, Wyoming, added TOGETHER.
23
The first sentence of this essay is brilliant.
4
Originalism is a cherry-picker's dream. Originalism is the fundamentalist's first tool, but only works - because of so many contradictions - as a cherry-picking tool.
You may hear, for instance, the Evangelicals including the Attorney General of the United States saying that we should be obeying the law because God has ordained our rulers to rule.
You will *never* hear them quoting the following description of the activities of the early church that follows - from the Acts of the Apostles, Chapter 2 - because it doesn't fit their fundamentalist's, textual originalist's agenda:
"...Everyone was filled with awe at the many wonders and signs performed by the apostles. All the believers were together and had everything in common. They sold property and possessions to give to anyone who had need. Every day they continued to meet together in the temple courts. They broke bread in their homes and ate together with glad and sincere hearts, praising God..."
9
Hillary was on to something. There IS definitely a vast right wing conspiracy... actually MANY of them. Lots of FACTUAL examples.
Shame on Anthony Kennedy. Fun Fact: he was nominated well into 1987 and ascended SCOTUS Bench in 1988, Reagan's LAST YEAR in Office. Not that this TRUTH had any bearing on McCONnell's THEFT of Merrick Garland's SCOTUS seat. Just sayin.
Mob bosses trump and McCONnell deserve each other. Too bad the rest of US deserve much better. GOParty OVER Country.
So SAD... and ENRAGING.
Wake up America. Republicans with enablers like Koch, Mercer, Adelson, et al have STOLEN our Democracy. Only viable chance to alter this disaster is WINNING CONTROL of Congress. BOTH Houses.
Better VOTE FOR DEMOCRATS unless your idea of a great American leader is Vladimir Putin... and Trump.
And here comes the 4th of July. Cruel irony.
9
"...I regard Kennedy’s Casey ruling as a vapid Emersonian effusion, whose paean to individualism was really a license to kill inconvenient innocents."
This sentence is so hideous it almost made me gag. And you, Mr. Douthat, are sniping at Kennedy for "faux-poetic prose"? Unbelievable.
22
Trump is a dead duck president - as he is under a very serious criminal investigation, that could see him impeached or indicted.
So why should Trump have anything to do with nominating a Supreme Court judge
It is like a mob boss nominating a judge for his own trial.
McConnell is a dead sucker for stupidity - he makes his own plots look like a joke.
Let the people vote in November and have a say in what type of Supreme Court that they want.
12
I hate to be critical and sound heartless, even cruel. But I sincerely hope we won't be reading Ruth Bader-Ginsburg's obituary before the November elections. She has been an exemplary stalwart of justice, independent, fiery, relentless, unafraid to bring new social changes. But we also do not want an Alito or Thomas as her replacement. Whatever his rulings in the past, his final act of resignation at this juncture is a clear indication of his core beliefs and who he is. Now I hope Chief Justice Roberts takes on Kennedey's mantle but that would be like asking for the moon.
3
Well how seamlessly you completely ignore Kennedy's role in the Citizens United case, which enabled and enlarged the freedom not of individuals but of corporations [oh gee, I forgot: of course corporations were ordained by God to be "individuals" and enjoy the rights pertaining thereto!]. The rot that decision reflected and reinforced in our politics now seems inextinguishable. I'm sure the retiring justice is grateful for your sneaky but unmistakable obfuscation.
13
The "conservative" argument against the individual mandate of the ACA was and is ridiculous.
If Congress can set up a retirement plan which everyone has to participate in by paying taxes into it then of course it can require everyone to participate in a health insurance plan.
A typical specious right-wing argument. Exactly what fundamental principle is it based on?
15
Straight, white, male privileged Douthat claims to care about "inconvenient innocents" but is a conservative whose policies plan to take away their food stamps, housing, healthcare, education, and more. He only care about those innocents BEFORE they are born, could care less what happens after.
20
Who thinks any of that miserable collection of cowards in the US Senate will even dare to grill Trump's stooge Supreme Court nominee about their understanding of the meaning of "establishment of religion"?
7
Why is it that opinion writers always ignore the the empty claim of libertarians that they are for "liberty". That is utter nonsense. Liberty is relative. Your liberty may be my oppression. That's why the libertarians are getting away with rhetorical murder. That's why Kennedy was such a fraud. He used the libertarian lie to support mostly Republican dogma.
13
I commend Douthat to close reading of District of Columbia v. Heller--both Scalia's majority opinion and Stevens' dissent, before he praises Scalia's "originalism" again. It's a trope. That "originalism" was purely situational, as Heller demonstrates. And "situational originalisim" is, by Scalia's own spirited definition of the term, no originalism at all.
9
He specifically chose Trump to pick his successor. I say good riddance.
7
As far as I'm concerned, Kennedy made a deal with the devil. His resignation before the mid-term election smells like Trump and McConnell.
25
Ross nailed this one.
Kennedy was an opinionated jurist without a real philosophy. So he just did what seemed “right’ to him at the time and what seemed “right” varied a lot over time and from case to case.
He was, in sort, a wild hare.
1
Douthat invariably frames his long rambling essays around one central them, abortion. It is always about abortion and as long as he has a platform here it will be about abortion.
When he gets his wish and states are be granted the power to forbid abortion every legislative race from lowly state representatives through the governors and state supreme court judges will be about abortion. I do not see how that will turn out well for Republicans.
12
“My dear president” Kennedy disappointed big time at the very end. This president road to fame is filled with deception, abuse and reckless behavior and his future is under criminal investigation.
Wasn’t the Judge aware of the real world?
4
Mr. Douthat should give us a column on Obama's "Caesarism" before making his false comparison to Trump's status as Francisco Franco. I would like to know what he thinks he means.
As for Scalia's "originalism" and the GOP's search for less "judicial activism," they both have the same roots: a wish to deny the effect of the Civil War amendments to the Constitution and particularly of the 14th amendment. The modern "conservative" GOP's search for "judicial restraint" began after Brown v. Board of Education, from Goldwater to now.
Scalia's Jesuitical reasoning always denied that citizens of the United States are entitled to equality before the law, if equal treatment offended the dogma of the Roman Catholic Church. All one's needs do is read his nauseating dissent in Lawrence v. Texas. This is also Douthat's position.
Meanwhile Douthat shills for a party which has claimed that it wishes to see states given more power and freedom. That party then proceeded to punish states voting for the other party by limiting the deductibility of taxes that states and localities can levy. Congress thereby reduces the possibility for states and localities to respond to the immediate, local needs of their citizens. This was certainly not the original intent of the Constitution or of the 16th Amendment, which Congress from its passage understood as providing for the deductibility of such taxes. Douthat is not a "conservative" - he is a Trumpista.
14
We have been carefully conditioned to think of the robed bretheren as being above the corruption and venality of politics. The only thing that they seem to be above is the law, and they stay there by sucking up to illegitimate theives who use the cloak of corporation to wrest power and wealth from the working people of this country. If corporate power made some sense in the industrial revolution, it was because corporations could better exploit the power of steam, hydro electricity, mass production and economies of scale.
In the information age the power of algorithms, robotics, computer trades, theft of personal information and the control of media, have made corporate power far more predatory than benevolent. The role of government is to defend its citizens from these threats rather than the other way around. Like the oppressed masses of India, Africa and Asia, Americans are being intentionally distracted in order to disenfranchise us from our rights while we are focused on non-issues. When we wake up it will be too late. If they want our guns there will be nothing we can do about it. If they want our babies they will take them as well, just as they did from the helpless refugees at our border. If you want to be a single issue voter, make your vote to save our Republic. If we don't wake up fast they will have us be the throats, with their black robes still on.
5
Sir we are some million, there is no way of "unifying" us whatever that means to begin with.
1
O please Ross, a non lawyer. Kennedy is going to go down with Robert Jackson, as one of the best ever. And Scalia as the worse. Original intent? What a bunch of hog wash. Scalia was the great legal mind with no common sense. Yes yes let's go back to the 1790's. The application of common sense to every day reality is the path to freedom. That is Justice Kennedy.
6
Until I heard Trump praised Justice’s son I have had no opinion on Justice Kennedy. Well, when did Trump actually praised someone in real estate loan business without some sort of criminal connections? Particularly in Deutsche Bank associated with laudering money for Russia?
18
As usual, tucked into Douthat's piece is opinionated, charged language designed to slyly accuse liberals of behavior and opinions he finds morally abhorrent and reprehensible. They are not the main text, but function as irritants, pricks to the reader. They are sophisticated audible dog whistles. And as usual, he expects to get away with it, because we want to get to the main point. So he accuses Kennedy of promoting a liberal doctrine that is a "license to kill inconvenient innocents", i.e. we are baby killers. Or "anti-clericalism of the left." I assert we are not anti-clerical unless they step out of their church and into the bedroom, the doctor's office, the public school. If they mind their own business, instead of mine, then all would be well.
17
I have always been amused when right-wingers decry liberal activist judges and justices, and take the originalist view of the Constitution. Do they think that the world of 1789 was the end of enlightenment? Was Scalia and his gang originalist when they ignored half of the 2nd Amendment and ignored all prior precedent to find an individual right to bear arms that has made an already horrible gun situation in our country much worse? What about when they declared that corporations are people with religious rights? Money is speech, so the wealthy have much louder speech than working people? The constant attack on government regulations that benefit individuals over corporations. Is it a coincidence that these holdings coincide with right-wing political goals? Of course not. Right-wing, activist judges and justices are at work doing the bidding of their right-wing politicians and supporters. They hide behind originalism and other smoke screens, but they are as political as the right-wing politicians who are destroying the country. The have no compunction against throwing a presidential election to their candidate, or pay off the gun lobby for their support of their politicians, or find new rights that benefit only their right-wing benefactors. And now they are in a position to have new brethren that will give them unfettered power to destroy the liberal order, democracy, and anything standing in the way of complete dominance of their right-wing political views.
9
''He was appointed to the Supreme Court at a time when the Republican Party was officially interested in curbing judicial activism and restoring power to the elected branches of government.''
One of the greatest acts of ''judicial activism'' the Supreme Court ever initiated was to push forth ''Citizens' United'', which essentially opened the floodgates for republicans to achieve power through sheer brunt force of dark money.
Once they achieved said power, they continuously sued (with the final goal of getting to a radically right leaning SCOTUS) with the 1st Amendment (money and religion) as a cudgel to strike down multiple other rights. - all in an effort to hold onto said power.
While Justice Kennedy upheld certain rights, he was a yea on all back door attempts to take away those same rights.
Now, the greatest right of all ( a woman's right to have to sole dominion over her own body ) is in peril as this President ( who has stated explicitly and publicly multiple times of his desire to have his pick overturn ''Roe vs. Wade'' AND to have women punished by the law for simply having an abortion ) will choose another justice for SCOTUS.
We shall see if all those republicans ( especially women ) that have stated publicly and explicitly as well that any nominee would have to upheld ''Roe vs.Wade'' will vote NO and maintain the settled law that has been in effect for 45 years.
9
Until the Roberts Court defends the Separation of Church and State, one of the most important freedoms, and overturns Citizens United, I have no reason to trust any of their decisions.
Justice is supposed to be blind to partisan politics, but Roberts, Thomas, Alito, Gorsuch do not behave as if they believe that.
Kennedy pretended to be Sandra day O'Connor, but he cannot hold a candle to O'Connor, who truly was a swing vote.
It does not appear to me that any of the afore mentioned Justices have grown in their jobs but cling to a past that no longer exists.
It is time to think about terms for Supreme Court Justices, no matter what side they are on the partisan divide.
8
And O'Connor admitted that she regretted her vote (for) not allowing a recount in Florida in Bush v Gore. Which GAVE Bush the presidency despite his having LOST the Popular vote.
Anyone seeing a theme there....
4
Anthony Kennedy's legacy will always be controversial, a confounding legacy. Liberal, Conservative or Libertarian? That question will always doggedly follow him. But timing is everything. His retirement at this juncture shows his shrewd intentions of what the SC should become. I wish Ruth Bader-Ginsburg had done the same when we had a Democratic President. As I said, timing is everything. A dissent is only a dissent but being on the winning team for a ruling is what counts. And Anthony Kennedy was a master at that.
Term limits for Justices. That would keep the blind lady with the scale blind and justice served.
6
Why do the Supremes have lifetime appointments? I know it probably was thought that they would be non-partisan. Not. Maybe we ought to rethink this. Maybe ten year terms. It is really unreasonable that a president can effect the court not only for his/her lifetime, but for the lifetimes of his/her grandchildren.
13
Sir, from my perspective you have it so wrong. Perhaps, it is because Justice Kennedy, being a Catholic himself, upheld the undeniable human rights of both women and the LGBT community. Yes, many of his leanings made myself and other progressives cringe, and we have had adverse repercussions to this day. But we have got to have on the Supreme Court at the very least moderate positions. If Trump follows through with his warped decisions - based on his needs not ours, this Court will lean so much to the right as to place this nation on a fast-track to a theocracy and broad-spectrum injustice in regard to equality for all peoples. Let's hope that at least Roberts has a conscience.
10
Ross blathers on: “Instead, our age of opioids and suicide and sterility, and the heartland populists and Bronxian socialists that anomie has conjured up, strongly indicates that his neoliberal model needs correction — that the freedom of capital and genitals is not enough for human flourishing,”
What rubbish. The problems engendered by extreme inequality and dereliction of a Congress run by a few billionaires can hardly be based upon a “neoliberal model”. Rather it is due to greed, graft, and indifference to the country’s problems.
30
In early 1960 my Republican parents expressed their fear that a Catholic named John F. Kennedy, if elected president, would be controlled by the Pope. Today our Supreme Court is glutted with Catholics and the Pope is trying to reform his cult of pedophiles and their enablers. It is obvious to me that God is a stand-up comedian.
20
What a sick joke. Scalia favored limits on judicial activism? I know you're being serious, but it's sickening. He was, perhaps, the most activist justice on the court in decades. He was completely political. Or have you forgotten the coronation of George W. Bush?
22
as for Tony Kennedy he was a right wing corporatist intent on crippling worker rights and black voting rights. he won't be missed. btw we also need to move away from a majority Roman catholic high court.
13
I just read two short items that taken together scare me. One is from this column:
",,,community and solidarity need to have their day, even if it comes at the expense of certain liberties and transcendentalist idylls."
The other is from a description of a book in the New Yorker:
"In the historian Karl Polanyi’s opinion, whenever the profit-making impulse becomes deadlocked with the need to shield people from its harmful side effects, voters are tempted by the “fascist solution”: reconcile profit and security by forfeiting civic freedom."
BTW that book review in the New Yorker is worth spending the time reading it.
https://www.newyorker.com/magazine/2018/05/14/is-capitalism-a-threat-to-...
6
As it turns out his legacy is going to be corruption. How is it that no newspaper turned up the Justin Kennedy/Trump connection until after the election?
21
To me, the worst legacy of Anthony Kennedy is his gutting of principled First Amendment jurisprudence. He is the author of too many decisions that expand the notion of "speech" or religion to cover action. He has made the First Amendment into a vague and overarching construct that hobbles government's power to control actions.
6
"Scalia’s originalism . . . establishes plausible (if, of course, debatable) limits on judicial activism."
Only when it suited his extreme right-wing agenda.
“ . . . Roberts is more temperamentally cautious than Kennedy, more interested in limited rulings than in sweeping ones.”
Sure. Like Citizens United, Shelby County, Janus, Hawaii v. Trump, etc., etc.
8
We will see what their platform is. The fruits of production have become un-affordable to many, healthcare costs are a good example. The capitalists refuse to fix the system so perhaps the "socialists" have some ideas.
2
Blah blah blah, big words, self admiration, absurd characterization of Obama... and then a really salient point about the nature of judicial activism, for which I thank the Notorious RGD.
Politics does abhor a vacuum and given the lack of pragmatic leadership from our legislature in particular, I accept this explanation for the expanding role of the judiciary in figuring out how our nation's to be run. Hadn't thought about it this way.
Given the recent history of the Court, I see little reason for RDG's pie in the sky hope for the Roberts court doing anything like laying down its powers or furthering "communitarian" purpose.
The legislature has been purchased into irrelevance. The executive branch appears destined for huge pendulum swings between political extremes (or at least whatever centrist position stands in for leftism). The Court is much easier to tilt ideologically, and that has been done, so here we are - leadership by judicial fiat representing a bloc of minority cultural interests and oligarchs.
I don't blame Kennedy.
5
Justice Kennedy, gently lead into retirement by the Trump administration and its sycophants before the midterms, cajoled with favors, flattery and appointments for friends, family and colleagues has undermined whatever judicial legacy he may have bequeathed to posterity. For this we should be thankful? Well like everything else he touches Trump will make the Supreme Court an even worse servant of democracy than it already was. Putin must be pleased and will give Donny a hearty at a boy when next they meet.
10
Among other things, the Founders intended that the people could keep and bear arms in order to suppress slave revolts. I mean, they had some blind spots.
2
How interesting to finally begin to learn about how Kennedy's legacy might well relate in more than simply a familial sense to his son's position with the tainted, Trump-lending Deutsche Bank.
6
Anthony Kennedy's legacy is that he was just one of the slightly less reliable and more pompous parts of the machinery of our oligarchy. He will be replaced by a more reliable and long-lasting part.
4
He is in the end a bought fool, purchased with little but false promises. Whatever he stood for will in the space of 10 years be consumed and destroyed by the court he now leaves behind.
He has failed America and failed utterly to understand the moral choice history required him to make, simply to serve one more term to see if there could be a stop to this.
Within 3 to 5 years the new court will most likely hold the court was in error as to gay marriage and reverse just as it will within the next term nullify Roe unless the Chief Justice ameliorates that damage because he is ever so conscious of his reputation and, even now, his place in history and does want to stain his blotter with total revocation of the right to choose.
But Justice Kennedy? He will be best remembered as the man who opened the flood gates to all the damage that will now pour through the chambers of the high court.
10
As a whole, the country is moving to the left, and the partisan hacks on the Supreme Court are moving to the right. What could go wrong?
9
The timing of Kennedy's stepping down--with a big nudge from the Trump (crime) family--further tarnishes Kennedy's less-than-admirable image. That the Justice's son has a high position at Deutsch Bank only adds to the suspicion around the thing. Don, Jr. seems to be at the center of more foul-smelling events. Should we wager that there's more to this than meets the eye?
15
You must be quite delighted at his retirement, for with it goes RoeV Wade. When a women does not of the privacy to determine whether she bears a child or terminates a pregnancy, she has no ability to conduct her life. You will have biology be destiny, which Kennedy would not. This is a dark day for women's rights.
8
Mmm...which Kennedy vote to preserve the ACA are you talking about? The most critical decision was on the individual mandate (Sebelius), and he voted against the ACA on that one.
1
I don’t agree with a lot of what Russ Douthat wrote about Justice Kennedy’s legacy in this column, but I think there is something that just about everybody can agree on. Whatever legacy Kennedy has will now always be tarnished by his decision to coordinate his retirement with Trump’s schedule for his replacement.
How does a learned man, regardless of any personal political bias, make himself so clearly a tool of a President who is ignorant of the basics of government? I, for one, have a far different opinion of Kennedy today than I did last week
18
What?????? Community and solidarity need to have their day, even at the expense of civil liberties???????
Douthat needn't worry for the remainder of his lifetime. The Court will now solidly support pro-corporate interests over the individual, anti-civil rights, anti-immigration, anti-union, anti-women's reproductive rights, anti-voting rights and anti-campaign reform. Our civil liberties are now insured to go down the drain no matter how many dissents are written by Sotomayor and the notorious RBG. Voices of justice, humanity, mercy, compassion will be drowned out by a solidly right-wing Court.
We will get more decisions like Citizens United and Bush v Gore so Douthat can rest easy that our civil liberties will now longer be a priority. The only community that will be prioritized in this Court will be the corporate community. The Koch brothers are dancing in the aisles and popping bottles of expensive champagne. The rest of us can eat Twinkies and drink tap water.
6
Obama’s “Caesarianism” was much better than Trump’s Putinism.
And yes, as other commenters have said, Kennedy’s unpredictability showed vestiges, in our yes/no era, of human, if not judicial, decision making.
3
You seem to be a member of a noble, and I would suggest, vanishing breed. Your sense of accountability speaks well of you and your family. But Americans should not be expected to exist without medical treatment. I'm not sure how your rejection of the idea of going to a doctor serves you or your family, since many seem to be dying before their time. Perhaps the turnover at your employer is tied to this, too. Many of us cannot will ourselves into a long life.
3
Anthony Kennedy would seem to have a considerable historical legacy. During my lifetime he cast the deciding votes on perhaps the two most significant issues in our culture wars affirming the sexual revolution while also preventing legislatures from inhibiting the increasingly overwhelming power of corporate money. While I cannot claim to have found any thread of ideology that united these things in his unintentionally parodic writing, he was one of the facts of my life that helped me perceive that the ascendancy of corporate power and consolidation of wealth on one hand and the decline of "traditional family values" due to the rise of sexual liberty on the other were united phenomena. He was a tool of corporate power but he was probably oblivious. Ironically, he was an American common man of my lifetime. Unfortunately, this common man is the consumer. If I had to guess I'd say history will prove unsympathetic to Justice Kennedy as it will to my American culture.
1
Two words are sufficient to summarize the lasting legacy of Kennedy, which aided and abetted the dangerous undermining of our representative democracy: Citizens United. Yes, he also helped to protect some civil rights, but how lastingly safe are those very rights if in Citizens he directly created the conditions by which they can be eliminated?
13
Bill Clinton observed, like doubtless may others before him, that people need a strong leader when they feel adrift, when the system doesn't work for them.
Reality has been changing far too fast for the institutions of Democracy to keep up, especially in a country where tradition and precedent Trumps reality on the ground. History shows that institutions are the last to adapt, and the and the gap the more painful the reforms will be.
The last elections have shown that a large amount of people have lost faith in the institutions of Democracy, and the social contract of the current system. So much so that they would rather see it blow up than have more of the same.
Looking at other places with entrenched and bitter conflict over decades, what pushes people into despair is the lack of Hope. Hope that they can have a better future, that their children will have good lives. It is that simple.
Unfortunately, the previous administration did not go far enough, for many reasons, but with the major fault of assuming that the system will fix itself, given a chance. It won't. Institutions are self sustaining burocracies, oblivious and resistant to change.
There are many ways to correct course, some are more peaceful than others. But change is coming at us, fast.
2
It isn’t the government’s job to give us hope, to give a better future to our children. That in a nutshell is where the divide exists between liberals and conservatives. I don’t need the government to look out for me. No one in my family has ever made it to collect Social Security. I haven’t been to a doctor since me Army discharge physical. In 40 years of working for the same employer, I have always had Tuesday as my day off and as a 1099 contractor do not get medical benefits, overtime or paid time off. So leftist agendas have done nothing for me except make my life harder as a manager. Turnover at my employer is astronomical. That can be directly traced to the entitlement attitude propagated by the left since FDR.
My friend, having reinveted myself four times already, each time with a new career and a new life, I know something about self reliance and grit.
But I think the most important lesson in my life is hope and love. I could never made it on my own, as hopefully you realize noone can.
Government is us, it starts with our local communities and goes all the way to the leadership we elect. It's very much our duty to look out for the needs of others as we do for our own, if for nothing else then because it benefits all of us to have a healthy, productive, and happy society.
Democracy, as Mister Churchill famously said, isn't the best form of government; it's simply better than the alternatives.
If your community and its government prefers National Feudalism and the right lane on The Road to Serfdom, let them cogently explain why and then the lot of us vote our choices on paper ballots. That's the way constitutional democracy is meant to advance, one generation after another, Of the People, By the People, For the People.
Like Trump, the Supreme Court defined its own powers -- its supremacy above al, the power to validate or negate legislative actions both federal and state. There's very little of substance in our Constitution. It's mostly procedural. The founders would be astonished and dismayed at the self-declared powers seized by the president and the Court. And we ain't seen nothing yet.
1
Considering that John Roberts joined most of Anthony Kennedy's 5-4 decisions, I don't see much improvement post-Kennedy. Ross Douthat does correctly identify serious problems with our government. The major problem is that Congress does not want to do the hard work or risk the political backlash to legislate for the common good. It is, of course, much more difficult to get a majority of 535 members of Congress from widely divergent districts to agree on a policy than it is to get five unelected justices with lifetime appointments to agree, or one president to unilaterally make a decision. But Congress's job is to legislate.
One precedent that badly needs to be overturned is the 1803 decision Marbury v. Madison, in which the Supreme Court effectively gave itself the power to judicially repeal Acts of Congress. So even when Congress does its job, the Supreme Court can follow right behind to undo its handiwork. Regardless of Anthony Kennedy's personal predilections, we are increasingly ruled by an oligarchy. Nothing in the Constitution contemplates this result.
2
The American legislative process should be 'OF the People, BY the People, FOR the People' and it ain't. Following the principles Lincoln annunciated, we should have a whole lot more Reps at work in the House of Representatives.
The number 435 was locked in place by the Apportionment Act of 1911, based on the census of NINETEEN TEN when The US population was 91 million. By Lincoln's standard then, 230 million Americans are either under-represented today or not represented at all.
Talk about state wide gerrymandering: How about country wide? There should be 1534 legislators in the House today, right now, enough to send streams of fresh and creative thinking through the DC Swamp every two years. Enough to loosen the Mercer's, the Koch's and the Trump's wealth-powered grip on our national programming and allow legislation to rise to the Senate from the population itself.
Vote. Let's get back to the constitutional democracy our Founders envisioned. Vote. Vote out the Cons, top to bottom, Autocrats to Oligarchs: Vote a way forward.
2
The Supreme Court is now just another partisan branch of government. Apparently, interpretation of the Constitution differs if you are a Republican or Democratic appointee. The Supreme Court has abdicated it's role as an independent branch of government for short-term partisan gain. These justices are not deserving of respect.
8
Mr. Douthat likes Constitutional originalism.
The founding fathers had slavery.
Women were not allowed to vote.
And Citizen's United overturned 100 years of precedence of keeping unlimited corporate money out of politics.
Like so many Republican "principles," they are really just a convenience to hide behind when it coincides with their wants.
17
"He did this without a particularly coherent constitutional theory"
Other than Thomas, I don't believe any of the other justices have one either.
2
The current Supreme Court, dominated by "Radical-Conservative" Republicans continues to give "Justice" a bad name.
Founded and funded by right wing American oligarchs, the Federalist Society that evaluates and recommends candidates for the Supreme Court, is a very different organization from the more bipartisan American Bar Association that formerly served in that role.
Expect more of the same kinds of decisions that undermine democracy, reduce the legal rights of Americans to vote, have freedom from other people's religious views, control their own bodies, have freedom from gun violence, and have "standing" to contest the corporate and governmental injustices they are suffering.
The arc of progress of the 20th century toward greater freedom and "liberty and justice for all" will end and in many cases will be "judicially repealed."
The right wing billionaire American oligarchs are getting their money's worth but they are few in number and there will never be a majority of oligarchs.
Vote. Vote. Vote. And make sure the votes are counted correctly.
11
Trump is a serial abuser of judicial process himself.
I have personal experience with courts used for extortion. I want revenge.
Anthony Kennedy has not be consistent in his reasoning in the Court's Free Speech decisions, in which he has played a major role. To me it raises the question of the Court's and his own intellectual honesty. Consider, for example, the Court's recent decisions on partisan gerrymandering in the Wisconsin, Maryland cases.
Justice Kennedy, in writing for the Majority in Citizens United stated in the Court's Opinion,
" . . . the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each."
But this is exactly what happens in partisan-gerrymandering. The government predetermines the worth of classes of voters in their state, on the basis of political party affiliation, and the worth of the voters' political expression, as solemnized in their ballots. Neither speaker nor speech and the ideas that flow from each are protected.
Why do PACs and their campaign contributions deserve higher Free Speech protections than voters and their votes?
12
Scalia?
Scalia shouldn’t have been allowed to act as a hearing officer for a city animal control board.
“Originalism” is an extraordinarily silly theory about how Jefferson, a slave-owning, white, male who rode horses to sell cotton to buy wooden teeth for his nephew would have viewed the question of whether or not the electromagnetic waves emanating from a computer are subject to search after leaving the property lines of the 27th floor condo.
Really?
18
Conservatives only invoke “judicial activism” when courts hand down rulings with which they disagree.
6
I doubt that any your pedantic words will end up on his tombstone, Ross. But the less of the seminal pronouncements among departed Supreme Court justices the better off our republic will be.
Take Justice Blackmun for example, please! He gerrymandered Court support for Roe-Wade using fake science. You know, it's not human until 26 weeks go by, later interpreted as it's not human until the mother says it is.
Point to the exact point where non-human becomes human, please. If you can't, the fetus is always human and the resulting abortion kills our own kind. 45 years later and 60 million abortion-executions can't budge the belief that the fetus is the woman's body and, ergo, her own thumbs up or down. It's not the woman's body. The unborn child in her body is of the woman's body, and the man's too. It takes two. and in this instance, two huans who don't have enough sense to use birth control. Roe-Wade is another legacy we don't need, and there have been many justices with far better legacies than Blackmun.
2
I suppose I admire Kennedy more than you, Mr. Douthat, simply because I could not predict his vote, as I always can with all the others. That made Kennedy - whom you dismiss as not having a philosophy - more to my liking since he did not seem to regard his job to be yet another partisan hack.
The rest of the team is partisan, and hacks. Predictable arguments along partisan lines. Why else would Mitch McConnell have bothered to strip a Democratic president of his right to a nomination based on the flimsy excuse of future election? Why else is he not waiting until after midterms to nominate and debate another? Because he is electing his team, to assure the vote. He doesn't *need* to be an effective Senator, if he has a Court to do his job.
I really cannot express the general loathing I feel for a state of affairs in which the country is busily ignoring the the people it serves in order to assure its political hegemony. We can all die from lack of healthcare, be laid off because some idiot thinks tariffs work, be run by a shadow government dreamed up by Steve Bannon and right wing zealots internationally, but we are all content as long as we get our partisan hacks.
Sorry, Mr. Douthat, I disagree. I would love a Justice who looks at each case on individual merit, not a "judicial philosophy" which is intellectual speak for partisanship and hackism.
14
I will be able to stomach a conservative replacement for Kennedy.
But cannot tolerate even the thought of maybe having to do that with Ruth Bader Ginsberg. To think about a Trump nominee stepping into her place, because we know it would be opposite her being, is truly nauseating.
4
Huh, Douthat?
“Corporate Freedom” and “Sexual Freedom”.... embraced as a unity? You mean if govt forbids gay marriage, it’s the same as govt putting limits on billionaire/ corporate donations overwhelming our political discourse?
This is warped. “Corporate freedom” tears our democracy, making public needs low priority vs corporate privilege. The US has worse economic equality than other democracies--see new U.N. report.
Citizens United is the most destructive of the far reaching S. Court decisions, letting legalized big money corruption masquerade as ‘free political speech’, per 1st amendment. It removes the influence of 99% of citizens on our lawmaking.
And CU corrupts US media also---they get big profits from costly campaign ads that swamp our voters. How does this affect coverage of big money dominance of our politics?
The effect? Candidates compliant with rich donors get financing. We line up to vote, hoping they’ll do right by us.
In other advanced democracies with limits on mega donors and paid political ads, their lawmakers are freed up to give ordinary people some representation for their taxation. That was once a US ideal.
By contrast our corporate political infrastructure has been cultivated for years—with elite donors, rw think tanks, and the Fox News GOP state media.
Columnists must stop the rationalizations for US plutocracy---pretending it's just 'Free Political Speech', not legalized corruption destroying US political culture.
4
President Obama had control of the house and senate for two years in which he passed the Affordable Care Act. After the Tea Party came into power he was unable to pass bills that reflected his winning the popular vote. McConnell voted to make him a one term president and repeal “Obama Care”.
To call President Obama “Caesar” means that he had unlimited power like Caeser did which of course he did not. He could and did not act with impunity like The Trumpster.
He dealt with Bush Junior's wars and deficits.
Kennedy seems to think that all Americans started out with the same set of opportunities. Rawls and Sandel show this is simply false. We do not all have the same freedom at birth.
So do not call President Obama Caesar and note that Kennedy was just another rich white guy who was born on third base and thought he hit a triple. He didnn’t.
3
Ross Douthat, you're a curmudgeon before your time.
However, I too find Kennedy's jurisprudence lacking. I think he's a great legal intellect in a bubble, his limited background (a Sacramento backwater of white-picket-fence gentility, Catholicism, statehouse politics which his father lobbied, and the people he personally knew) forming a "worldview" he was not able to transcend.
6
Obama's Caesarism? Like Douthat's objectivity or commitment to truth?
What Americans need is some history. Like the History of Kennedy and Trump and the light at the end of the tunnel for America. Seems there's money involved and possibly a conspiracy afoot? Question? Putin's or Trump's conspiracy?
One thing Americans have not contemplated is whether Trump has the intelligence to recognize the strings that move him given his capacity to pull strings. Does he imagine himself to be Putin's puppet master? Why would he, given his remake of the GOP in his own image, and his lightening strike removal of Kennedy for a better employee? Of course! Putin works for a wine, steak, University salesman!
And the GOP? Well on its way to yielding to perfidy, embraces Trump and the toadies scramble to kiss his...ring. Gowdy was in special form and now Douthat, not to be out-done, steps up to offer sage analysis which concludes with Trump's taking the crown from ...Obama?
Brooks analysis of the damage done by Kennedy is a far better piece and he never relies on kicking sand into Obama's eyes. What Brooks did outline was a callow thoughtless historical dilettante who, as Habermann revealed, is likely just another "guy who works for me" in Kennedy.
Stick to the Pope.
7
Mr Douthat, how many liberties of your own are you willing to part with for us to flourish again? My guess is none.
15
Scalia's originalism - ha! Scalia butchered the constitution when he eviscerated the introductory clause to the second amendment that made it clear arms could be carried by citizens acting as a militia in lieu of a standing army. He completely ignored the reason for the second amendment's existence.
8
Is it true?
Is it true that Anthony Kennedy's son loaned One Billion Dollars to Trump, when he was working at the infamous Deutsche Bank?
Is that true, New York Times?
And if that's true, why is no one talking about it?
9
It is being discussed, and it's much more nuanced than a "Kennedy's son lent Trump money" sound-bite. Please read the article about it in Salon.com. It quotes MSNBC host Stephanie Ruhle, who worked for eight years at Deutsche Bank before joining the news network. The gist is that Kennedy was involved with DB's real estate group, while most of the loans to Trump came from DB's private client group, and a significant number of the Trump loans occurred after Kennedy had left the bank.
Kennedy's legacy will be he sold his soul to Trump and his family. His son helped bail Trump out financially. He's a corrupt man. He made sure by leaving in July, instead of waiting till Oct or Nov that the court will stacked to the ultra right and the madman will get to pick him. Thanks a bunch & good riddance.
28
Thanks Ross for defining Anthony Kennedy somewhat irrational, i.e., neo-liberal, tenure on the Supreme Court. Hopefully his replacement will restore common sense and common morality by putting an end to such murderous atrocities as Roe vs. Wade.
1
Kennedy's legacy?
He was bought.
5
Now Thomas will retire and any idea of democratic society will be destroyed.
We are in trouble as a country.
7
Discovering that Kennedy's son loaned Trump a billion dollars turned my stomach. A big shot at Deutsche Bank, he laundered Russian mob money. He loaned Jared Kushner big money. Trump's family did a big con on Kennedy.
Sickening. Our country is tainted beyond belief.
Legacy? Mr. Kennedy, your legacy is assured. Corruption. That's how you will be remembered, Mr. Kennedy.
This Supreme Court will aid Trump as he continues his crimes against the American People.
13
I hope his replacement is protestant, though not one of the apostate sects.
1
The best thing Kennedy has done inuears is to retire so that we can see another Constitutionalist hit the Court!
And what is your definition of a Constitutionist? A judge who rules the way you want?
1
The dog finally caught the car. Roe v. Wade has been a reliable vote magnet for nearly 5 decades. No republican congress grifter or evangelical temple money changer preacher actually wants to reverse Roe v. Wade. It is a gold mine. There is a dilemma here: with the new right leaning extremist judge makes it possible to reverse Roe v. Wade, but republicans do not want to give up the vote getting milk cow.
Until today, I had no idea that justice Kennedy was an expletive. His son is a white collar criminal. See:
http://www.businessinsider.com/anthony-kennedy-son-loaned-president-trum...
4
Sadly, the Supreme Court lies in ashes because it never enforced "Congress shall make no law respecting an establishment of religion" on the fruitcakes who run for public offices to serve the God they created from themselves.
7
Dear Ross, could you please rewrite this piece with fewer words I have to look up in the dictionary?
1
Scalia was an arrogant fool and no friend of democracy.
19
Justice Kennedy is a centrist who has ruled in favor of conservatives and liberals equally. Justices Kennedy, Souter, and O'Connor, all Republican appointees, voted to uphold Roe vs Wade in the Casey case. Had Justice Kennedy voted against upholding Roe vs Wade in that instance, you would be singing his praises Mr. Douthat.
As a man you will never know what it means to be pregnant from a rapist, from incest, or to be carrying a fetus that is so damaged it will only know a life of pain when born, or be told your life is at risk from a pregnancy. You will never know what it means to not have a say in determining your own reproductive rights.
When I was in my late forties, and with a grown family, I had to have my husband's signed permission for a tubal ligation in the state I was living in. That permission had to be signed in front of medical personnel. On the other hand, a husband's spouse did not have to give her signed permission to have a vasectomy. It was a humiliating experience.
While I risked embarrassment, I was not risking death as women who sought abortions did in the era when abortion was illegal. No woman should ever have to do that again. Not ever. But that will all change if the choice for SCOTUS is a right wing conservative hell-bent on overturning Roe vs Wade.
No doubt Mr. Douthat you will cheer if Roe vs Wade is overturned, no matter the consequences to millions of women.
7
...and Kennedy had quite a hidden relationship with Trump & his clan of merry financial pranksters. Who knew? Now let's really blow the lid off. Legacy be damned.
6
Nature does abhor a vacuum. Republican decided to reduce the power of governance to maintain the rules they like (social control) and get rid of the ones they don’t (social services) which left a vacuum of heart. Conservatives love bootstraps because the conservative elite have boots and don’t want to share them with the undeserving. They love the idea of strict constructionism concerning justices following the constitution, which should be read as reading the constitution the “right” way. Their reading of the Bible would include poking out eyes in the justice system and following God’s commandment to alway follow the wishes of President Trump. Justice Kennedy reacted occasionally to changing times and the needs of human beings. He was all over the board unlike the conservative machines who will always decide the right way. If the constitution was so clear and obvious in its meaning we could have nine laptops decide all cases. Conservatives, enjoy your time in the cake shop. Try to leave a few crumbs for everyone else.
4
"Politics abhors a vacuum, and judicial activism increasingly fills the empty space created by legislative sclerosis and political cowardice, by the unwillingness of elected representatives to act on controversial issues. "
And there is the key. Rather than continuing to blame the Court for taking on an "imperial" role, you would be better to ask why Congress so consistently refuses to do their job. But I suspect you don't like the answer to that question, since it involves looking at why Congress so often ignores the will of the people to do the bidding of the donor class.
6
I read comments every day - not in the 'best' news sources of course - about the Republicans' march toward National Socialism. I think they're actual march is toward National Feudalism.
Hindering free and fair elections, erasing the barriers between Church and State, stacking the courts with political choices, keeping the poor and uneducated down: these are all signposts on The Road to Serfdom. Vote. Vote a way off next exit. One set of Middle Ages was enough.
6
As if Brown v Board if Education was the epitome of the good old days of judicial restraint. Or Dred Scott the paragon of respecting States Rights (to limit slavery in their own borders).
Puh-leeze. The author imagines a time that exists only in his imaginary memory, and laments the loss of a time that never was.
2
No doubt conservatives like Douthat "admired Scalia’s originalism, the dubious concept that assigned meaning to the constitution based on what the Founding Father's intended. This concept fails the basic common sense test on two counts.
First, it is ludicrous to assume that the Founding Father's were infallible and crafted a constitution that was perfect. How can anyone expect a bunch of men (yes, they were all men) in the late 1700s to know the articles of governance perfectly. So perfectly that future generation, over two centuries later, have to follow that to the letter. Second, how does Scalia or anyone today know the intention of the Founding Fathers? I doubt that anyone even a few years after the framing of the constitution would have been able to interpret the intention of the Founding Fathers, leave alone someone in this day and age of globalization and internet.
In fact, it is precisely the likes of Scalia that are directly responsible for the MISINTERPRETATION of our constitution. People in the "origanalism" doctrine conveniently interpret the constitution to suit their political tastes without any heed to the social context in which we live today.
I know this is a column on Kennedy, but the real villain in this story is Scalia.
4
Justice Kennedy's decisions were almost a contorted as the author's language and musings.
This column has a Brooksian reach for categorizing that tends to veer from reality rather than define it.
At the end of the day what matters is what is right. Visions are dangerous and polarizing. They tend to see reality in a very limited way because they tend to impose an interpretation that is as restricting as it is liberating. The more difficult trick is doing what is right.
Over 40 years of GOP pablum about the dangers of government paid for by libertarian donors who only care to keep their money has produced a rush to worship individualism. In the process, SCOTUS has helped destroy our democracy (Citizens United and hands-off gerrymandering) and the power of government to guarantee our welfare. It has elevated bigots and hypocrites that Jesus would disown in a second (if one reads the Gospels) in the name of promoting the freedom of anything that claims it is Christian. It has protected the self-serving at the expense of a country by, of and for the people. In the name of freedom, innocents die, the middle class is destroyed and income inequality has thrived as back in the Gilded Age.
Voters want life, liberty and the pursuit of happiness. They want "out of many, one". They want their rights protected, but they also want a government to protect them in old age and infirmity. They do not want minority interests to be elevated over what is best for all under some litmus test.
6
The GOP Court will work for Corporations. They’re useless to the common working person. So, the rich will have fuller bank accounts. The average worker will have all protections taken,away. The GOP did not used to be this way. Including religion in government has exaggerated what government should be. Just disgusted with it.
3
FYI—so-called “originalism” is an interpretation of the law. For conservatives to continually and conveniently overlook this is misleading at best, mendacious at worst. We do know that the framers meant for the Constitution to be a living document. Thus the right to amend, and the court to interpret.
3
I was ready to partly agree with you about Kennedy, then came the offensive comment about "a license to kill inconvenient innocents."
Women do not have abortions because Justice Kennedy or anyone else gave them a license to do so. Women have abortions, whether they are legal or not, because they don't feel that their circumstances-- biological, genetic, economic, psychological, familial, etc--give them any choice. All you and Donald Trump's Court pick can do is to make their circumstances & their choices more miserable than they already are. You will get to keep living in your world of black & white moral absolutes. Women will still have to live in the real world.
3
At the risk of alienating almost everyone under the age of 60, or alternatively those who have enjoyed the advantages & comfortable affluence associated with a private education, I will share my inferior and far less expensive schooling with anyone willing to read on.
Any erroneous information contained here reflects my failures to properly recall my history & social studies, or my stubborn laziness as a student (or anyone of a series of significant head injuries stemming from my progressive adventure sports/dopamine addiction)
Despite my short-comings as a repository of historical recall, please consider the following with regard to our Supreme Court.
The U.S. Constitution provides for 3 separate and co-equal branches of government; executive, legislative and judicial. Only two of those branches were established with the expectation that they would be essentially political in their origin and function. The executive & legislative branches were democratically established and maintained through democratic elections
1
"Like most conservatives, I favor a more limited role for our robed archons..."
Are you kidding me?
There was a brief period in American history when a liberal court engaged in dramatic activism. This was necessary because the Republic had collapsed into a Jim Crow nightmare. Brown v. Board, the most activist decision in our history, and Reynolds v. Sims, etc., were efforts to restore democracy. They partly worked.
But for your entire adult life, the activists have been conservative. Destroying Section 5 of the Voting Rights Act? Killing the Violence Against Women Act? Ever heard of Bush v. Gore??
"Originalism" is not a limit on activism. It's a JUSTIFICATION for activism. That's its entire point. Its proponents talked of restraint when their majority was shaky; now that they have captured or stolen more of the seats on the Court, at the Federalist Society the bigwigs speak openly of judicial "engagement" being preferable to "restraint."
It doesn't bother me what you think of Justice Kennedy's mixed and complicated legacy. But please, please, do not continue to believe this ridiculous canard that Justices like Scalia, one of the greatest judicial activists in our history and an outspoken advocate of such activism, was somehow a proponent of restraint. We are in the middle of an activist era to rival the Lochner era. That is what your side has wrought, and whether you like it or dislike it you should at least begin by seeing it with eyes open.
15
Awesome. Reading this, I felt you were reading my mind, yet were saying it so much more effectively.
3
Well stated, but I must admit .. I do favor Scalia's opinion in the landmark 2008 Supreme Court Heller Decision (District of Columbia vs. Heller). Scalia, wrote the majority opinion.
(Section II, 1. Operative clause, sub-section c, paragraph 5: “Thus, we do not read the 2nd Amendment to protect the right of citizens to carry arms for any sort of confrontation”).
(Section III, paragraph 1: “Like most rights, the right secured by the 2nd Amendment is not unlimited” … “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms”.
(Section III, paragraph 2: “We also recognize another important limitation on the right to keep and carry arms .. as we have explained, that the sorts of weapons protected were those [in common use at the time] 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of [dangerous and unusual weapons].”
These clearly articulated 2nd amendment limitations open the door for a wide range of entirely permissible firearm regulations consistent with the limitations enumerated in the Decision.
Kennedy has been a econo-political hack since ensuring Bush, the darling of the Wall Street/Industrial-Military Complex was chaded to victory.
He has sided with big money at every opportunity, especially that well-funded non-human entities have the right to pour $$$ into an already dirty system.
Stop with the platitudes about him just because he came up for air a couple of times on gay rights. The other hundreds of decisions have made our government less responsive to the people.
4
Ross, you know you love Trump. Why do I think this? Because if you could ever bring yourself to answer the following truthfully we would all know what we suspect is true.
'Ross, If you could decide after 17 months of Trump to go back to election day and decide Trump or Clinton, who would you choose?' My bet is Trump. So stop trying to convince us otherwise.
3
"Obama’s Caesarism?!' Ross, you are right when you point to a 'useless Congress' as a reason for the Supreme Court's reach to be felt, but can't you also see that your perception of President Obama is influenced by the do-nothing Congress who stirred only to be obstructionist?
12
For someone so smart it’s amazing how gullible he was to Trumps charm offensive. I have a beautiful piece of ocean front property in Arizona I’d like to show him.
2
Very little will be remembered about Kennedy in a few years except his feckless collusion with Trump to open the way for another conservative extremist to join the Supreme Court.
5
The Supreme Court of United States is the least democratic branch of our divided limited power constitutional republic of united states.
The law is not fair nor just nor moral nor objective. Law is gender, color aka race, ethnicity, national origin, socioeconomics, theology, politics ,education and history plus arithmetic. Both African enslavement and separate and unequal African Jim Crow were legal. As was the invasion and occupation of Native America by Judeo-Christian Europeans.
A sage once noted that the Supreme Court follows the election returns. For Moses "legal research" involved going to listen to a deity who wrote the law on stone tablets.
Another wise man noted that the Supreme Court is not final because it is wise. Instead it is wise because it is final. The first Supreme Court actively concocted and created a role as the arbiter of Constitutionality.
1
Ross is an easy read if you are willing to wade through his attempt at literary prowess. The Roberts Court is composed of 3 very conservative Roman Catholic men, one very conservative Episcopalian and a should be conservative Roman Catholic man named Kennedy, who is deserving of Douthat's farewell treatment because of his failings to hone to strict RC teachings on abortion and homosexuality. Otherwise, his fleece is as white as snow. Ross is exhilarated that another arch conservative (preferably Jesuit-trained like Roberts) will replace him and we can all be great Americans (circa 1950) living under a Robert's pro-business and pro-religion court with a neutered congress and a president who operates like, well the monsignor at my 1950's church who preached money, money and more money, who scolded from the pulpit, who thought all roads led to him and who always got his way.
7
Why did he resign now instead of after the November election, when a Democratic win might have resulted in the appointment of
a somewhat even-handed Justice.
This thing stinks.
4
The concept of "original sin" defines all of Roman Catholicism. Getting born is the offense that justifies being punished for the rest of your life, until your endurance and acceptance is purportedly rewarded post mortem.
6
Oh, Russ, I so disagree. So many of us looked at Justice Kennedy as a moderating influence on an increasingly political Supreme Court. His rulings were not inconsistent or arbitrary. Rather he did what judges are to do..took each case on its own merit and looked beyond his personal ideology. Yes, he angered one side or the other. On the flip side, however, he brought relief to either side of the spectrum during his long service to the Judicial Branch.
I can only hope that Roberts becomes the new Kennedy. For just as much as I fear an inept and deficient Mr. Trump and his useless Congress, I am even more frightened of how the Bench can irreparably diminish, or even destroy, the fair and just democracy for which we strive.
2
Kennedy is an American disaster waiting for his applause.
And unless Republicans with a conscience summon the courage to vote against his replacement, our beautiful country will slide into the pit of hatred and violence where third world countries dwell.
2
So Ross, if you like Antonin Scalia’s “originalism” so much, explain to me where in the Constitution it says that corporations have the same rights as people?
The Constitution addresses “emoluments” specifically and clearly. So why is President Trump, after 18 months, still making money for his personal businesses on the backs of American taxpayers with impunity?
Why are religious schools and enterprises given federal money and tax breaks, which is a clear violation of the “Establishment” clause?
Why is the Second Amendment twisted into a carte blanche policy regarding guns, when the intent of the Founding Fathers clearly was focused on militias?
Why not start with those questions? Scalia’s “originalism” is a bunch of nonsense.
16
Corporations were around a long time before the Constitution was written. If the framers thought they should be deprived of the rights of individuals, they would have said so.
Corporations are people, too! The Democrat Party is a corporation, i.e. a group of people bound together by a charter. Would you limit their right to donate money to individual candidates or causes?
You're view of the 2nd amendment was demolished by Scalia in his majority opinion. Read it. It's interesting to note that the idea of gun control and disarming the population was hardly even discussed until the middle of the 20th century.
Agreed. Ross’ idea of originalism is unoriginal and consists of Humpty Dumpty’s scornful pronouncement that “when he uses a word, it means just what he chose it to mean—neither more nor less.”
There is nothing in the Constitution that dictates that the court should or every could be non-political. It has always been hotly political and prejudicial because humans tend to be that way.
The mythology of robe-clad oracles dispensing dispassionate Wisdom from some celestial temple that TV cameras may not enter is wearing thin. The broader public apprehends that Scalia was a malicious crackpot and that Thomas is a dullard. There is nothing mystical about it.
Republicans are overplaying their hand with their Faustian alliance with Trump and his demonic glee at inflicting pain on the helpless.
When Democrats regain both houses of congress, possibly in 2020 or 2022, there will be nothing to stop them from impeaching those justices that do not sufficiently amuse them, or stuffing the court with another two or three justices as FDR tried to do.
3
I have to agree the Court needs to tread lightly. The Court’s role is to make sure laws are constitutional, not to overturn laws based on a justice’s vision for America.
6
Kennedy’s legacy is that his son is money launderer and he was corrupted. As soon as Trump was the nominee, Kennedy should have announced the conflict of interest - but he didn’t. He stayed until it was safe to retire and voted with the Trump administration on every case. His legacy is that of a supreme country judge who was compromised - there will be more that comes out.
31
Anthony Kennedy's tenure on the court brought a great many decisions I disagree with and a few with which I concur. His worst decisions, Citizens United being among the most glaring, pale in comparison to his final act: leaving the court in the hands of Donald Trump. The lack of judgement is staggering.
31
Well said, and so true. While one would agree an 81 year old could retire when desired, you would hope a Justice would retire six months after an election than four months before -- responsibly deferring to the voice of the electorate.
If Justice Kennedy was concerned about his legacy, his final votes and manner of exiting from a democracy in crisis doesn't show it.
3
SCOTUS only hears about 80 cases a year, the vast majority of judicial cases being heard at various levels of lower courts. There are currently more than 100 of those up for nomination and most if not all candidates will/must pass the purview of The Federalist Society. In short, why not focus on what TFS stands for and what their litmus test is and tell the American people?
As a lawyer who has had some experience with the group once considered by most as an organization with extreme views, it might be worth a newspaper informing the public.
21
How? The only news org's with credibility among the masses are right wing. I fully anticipate a wave of 'news' jokes -- like lawyer jokes.
1
Given that Ross agrees with their extreme views, you're asking the wrong person.
2
Kennedy was a key accomplice in the Bush v Gore and Citizens United decisions, so in my mind his legacy is the decline and fall of American politics and governance. Too often he was part of the Roberts court’s modus operandi of pulling legal rationales out of thin air to validate preconceived policy goals. Every current Republican Justice will leave a legacy that is damaging and deplorable.
21
"that community and solidarity need to have their day, even if it comes at the expense of certain liberties and transcendentalist idylls." Easier said than done in our increasingly diverse and balkanized society. And since Douthat offers no realistic and constitutional ideas on how to achieve this goal, his writing is no different than Kennedy's "Emersonian effusion."
9
Once party loyalty becomes more important than governing Congress becomes less and less relevant.
15
Kennedy's Imperialism, as you call it, really reflects the modern role of the Supreme Court that began with Brown vs. Board of Education. Brown involved the correct application of the Constitution to end the separate but equal ridiculousness. But Brown involved more that just a legal ruling, it centered around a social movement.The Civil Rights Act of 1964 followed to codify a new era of personal rights in our Country.
And I suggest that these two events influenced the Supreme Court to play a more meaningful role, which began in earnest with Roe vs. Wade, which even its supporters realize has flimsy support in the Constitution.
Ever since the Supreme Court has moved toward its current 5-4 decisions that we have most times today. The conservative justices generally take the traditional role of the Supreme Court: limit the other branches of government when the overstep the Constitution. The other contingent follows the Roe vs. Wade model: fabricate "Constitutional rights" in the interest of the progressive agenda.
Kennedy just couldn't decide which camp he liked.
The most interesting aspect will be to see how the Supreme Court evolves after Kennedy (and RBG). Will we see a tempering of the dissemination of personal ( not Constitutional) rights from the Court?
3
Actually, there's a lot more agreement on the court than we tend to recognize. In the most recent term, about a third of the opinions were unanimous, while about one fifth were 5-4. All, or nearly all of the 5-4 decisions this term went to the conservative side of the court, but even Justice Sotomayor, generally considered the most liberal of the justices, voted with the majority in 72% of the decisions.
1
Under the limited powers principle that promises protection of minorities from the excesses of majorities, when the case gets to the Supreme Court, it must decide whether the law(s) at issue are legislated pursuant to the limited powers of Congress, or go beyond them.
The "Gun Free School Zones Act" decision makes an example of this. The Court found it unconstitutional because the Congress had cited the Commerce Clause as the authority to enact it in its legislative history. Any Congress worth its salt would have simply re-enacted the same law pursuant to its Article I Section 8 powers to regulate militias.
8
The grandiloquent language aside, Mr. Douthat makes some good points. However, I see Justice Kennedy asserting in some of his decisions the rights of individuals to be free of the constraints of Mr. Douthat’s communitarian society. Whether by religion, political party, economic status, race, etc., that communitarian vision has long been and all too often constraining and stifling to individual liberties. I think justice Kennedy struck a blow for the basic free will of individuals. Not a bad legacy in this riven and polarized society!
2
And I think this entire Court has muddled the whole concept of limited delegated powers as protection of minorities from excesses of majorities.
1
Scalia was many things but he was not a CONSISTENT originalist.
He was an originalist when originalist suited his purposes and he abandoned originalism when that abandoning originalism suited his purpose.
In his book, Gunfight, author, Adam Winkler, on page 287 describes how Scalia abandoned originalism in some parts of his Heller opinion.
All Supreme Court decisions are based on expediency and not the Constitution.
Even a justice like Hugo Black did this.
Supporting the WW2 Japanese internment Black argued we were at war. That is an argument based on expediency and not the Constitution.
He voted in the minority to sustain the conviction of a man who wore a shirt that had a very obscene word.
So much for "no law" means no law.
8
Scalia was consistent only in flipping off all charges of conflicted interests.
1
"the years of Obama’s Caesarism"
It is hard to name an exact moment when our Presidency turned imperial, but the Caesar of an imperial Presidency long predated Obama. We edged into it, rather than crossing a Rubicon.
It seems to have been a matter of surrender by Congress, rather than seizure by the Executive. Douthat is right about "the unwillingness of elected representatives to act on controversial issues."
After our sixth President (John Quincy Adams) left office, he ran for the House of Representatives, and was a Congressman for another 18 years. Would Obama now run for a seat in the House? Would Dubya have done it? Bill Clinton supported his wife running for the Senate, but he did not consider doing that himself. Gerry Ford did not go back to the House he'd left as Leader.
Congress today is beneath former Presidents. Congress is filled with a lesser breed of politicians. They dream of moving up to Cabinet posts (like Sen Sessions, and Sen Kerry).
Congress made itself what it is today. Those who could make it a more powerful institution instead aim to do other things.
33
Obama has neither the frame of mind nor the temperament to be a Caesar.
Obama virtually curled up into a ball when it finally dawned on him that he had been backed for the presidency by Republicans sabotaging the Democratic Party.
Curiously, my mother believed that one of the most brilliant books ever written is "Memoirs of Hadrian" by Margaret Yourcenar. My politics come from her line of the family.
I can't be the only reader who's agog at Douthat's prodigal use of ancient imperialism as a motif of for op-ed pieces. The USA is not the Roman Empire. The US Senate is not the Roman Senate. The US president is not an imperator, not even one as easily dismissed as Nero or Caligula. Nor are (all) the people to be dealt with through bread and circuses. The American government, its strengths and its weaknesses, derive from the Enlightenment, not from the Enlightenment's addiction to Classical terminology.
22
Dauthat thinks he sounds intelligent by living in ancient Rome. His editors could bring him down to us. Then they would loose their main purpose.
1
The "Make America Great Again" routine is the same act Mussolini pulled on Italians. The US is obsessed with the Roman Empire because its founders learned practically everything they knew about politics and government in their Latin and Greek classes.
1
Deeply disappointed with Justice Kennedy’s last days and the now very public relationship between Trump and his son. He tarnished his legacy in my eyes but I’m sure Trump loves him so that’s all that matters. A very sad time I’m the USA.
90
Antonin Scalia just made a peculiar Sicilian gesture when his conflicts of interest came up.
2
Why you don’t think that Kennedy is a pretty straightforward libertarian? Libertarians generally don’t believe the government should be involved in anyone’s private life. This philosophy explains Kennedy’s abortion and gay marriage stands. Libertarians are government minimalists. Social conservatives like Justice Thomas aren’t so pure in their small government philosophy, especially when it comes to enforcing societal puritanism. I sense that you aren’t opposed to having the government regulate the private relationship choices of its citizens either. Libertarianism also easily explains Kennedy’s rulings on corporate election contributions and gun rights. If Trump knowingly or unknowingly picks another near-pure libertarian, odds are that you won’t see gay marriage or the right to choose overturned anytime soon. Conversely, a true libertarian probably also wouldn’t support any extraordinary government protection of gay rights. Marriage equality wasn’t asserting a new right, it was about ruling against the government’s ability to stop any type of marriage it didn’t agree with. Look through a near-pure libertarian lens and Justice Kennedy’s history of rulings becomes very clear.
9
Sophistry is all I see coming out of this Court that apparently doesn't have any clear idea what an "establishment of religion" is.
1
Mr. Douthat makes two statements to the effect that a strong, centralized authority is seen as desirable by Americans, which in part explains the increasing activism of our right wing Supreme Court. From what does he derive this conclusion? Does he assume that the election of an authoritarian President by a minority of American voters suggests a preference for autocratic leadership?
I don't know anyone who doesn't wish for a functioning legislative branch. We don't have one because the regressive objectives of one party are best served by a "sclerotic" Congress, supported by a compliant, politicized judiciary. This state of affairs reflects not a preference of America's citizens, but a skillful and ruthless execution of political strategy.
In a similar vein, the polar extremes of our voting populace are not a "Bronx socialist" and a "midwestern populist." Merriam Webster defines a populist as "a believer in the rights, wisdom, or virtues of the common people." Presumably Mr. Douthat intends this term to describe the average Trump voters, those folks who stand behind Trump at his "rallies." But I think a more accurate term would be "white nationalists."
Tom Harkin was a midwestern populist. Not those folks. They aren't craving centralized leadership as much as a return to white, Christian, male hegemony, which makes for perfect alignment with the modern Republican agenda.
31
Spot on!
1
They're schizoid about central government. They only want it to wage war and leave the states alone to become private fiefdoms.
1
Trump should not be able to nominate anyone for Supreme Court while his campaign is being investigated - especially with the parade of people pleading guilty. Will the Senate put a hold on it? Doubtful.
20
McConnell sweated blood for this judicial coup d'état, and by golly, no mere senator can put a hold on any of it now.
2
Douthat is unfair to Congress -- the Affordable Care Act was a major effort to deal with a serious social problem. The Court had no basis to invent theories to disrupt this Congressional program. Similarly the Court's decision to invalidate provisions of the voting rights act and limits on campaign expenditures. What the Court should do -- reject state efforts to curtail the right to vote, the most fundamental democratic element -- it has failed to do. This is not judicial imperialism; rather, it's from judicial partisanship.
22
Douthat: I admired Scalia’s originalism precisely because…
Thomas Jefferson: But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
Douthat: We also know that he’s (Roberts) both more friendly to religious conservatism.
Wis. Supreme Court 1890: There is no such source and cause of strife, quarrel, fights, malignant opposition, persecution, and war, and all evil in the state, as religion. Let it once enter into our civil affairs, our government soon would be destroyed. Those who made our Constitution saw this, and used the most apt and comprehensive language in it to prevent such a catastrophe.
Dare I say this? Kennedy, Alito, Thomas, Roberts, and Gorsuch are all Catholics which has formed their character. The Catholic Church is replete with repression, a slow-moving, narcissistic behemoth interested in enhancing institutional power, antithetical to human progress at a time of desperate need for enlightened and reasoned change.
The next court nominee will be a textualist/originalist and a Catholic or Evangelical. God Forbid!
19
JFK was Catholic too, and he was not "antithetical to human progress at a time of desperate need for enlightened and reasoned change." The same can be said for RFK and Teddy Kennedy.
We won't see any like them on the Court by appointment of Trump, but be careful of such a broad brush. We need all our friends.
4
Religion employs dogma, which is mostly unfounded assertions. Science rejects dogma, which makes it self correcting. Religion hates to admit to being mistaken. I will go with science over mythology.
The most important, and neglected, words in the US Constitution are: "Congress shall make no law respecting an establishment of religion". It is self evident that "free exercise" of religion can only be voluntary, and uncoercive on others.
1
Communitarianism and solidarity are far more alien concepts to the intellectual and cultural traditions of this country than what Douthat dismisses as Kennedy's Emersonianism, even though the consistent application of his take on it across issues would lead to absurdity and nihilism at odds with both contemporary progressivism and conservatism. Yet, as Douthat rightly observes, it is quite compatible with neoliberal capitalism--the main social constant across parties and administrations in modern America, which have largely alternated the interests and values of the 1% and 2-5%, with Republicans aligning their economics with social conservatism and xenophobia in order to win elections especially since the 1970s political realignments. When it has come to the court, both Democrats and Republicans have largely wanted "activist" judges to settle partisan agendas by issue rather than judicial philosophies. The average Republican on the street wants the court to back their issues and legislate their values from the bench, not simply exercise judicial restraint, and Democrats want rulings, in many cases, that they hope will serve as a means to remake the values of society (beyond the political or legal realm) and not merely guard against a tyranny of the majority on behalf of oppressed people with legitimate needs and grievances. Both are wrong, even though one may hope rulings that curb a bona fide tyranny of the majority allow the majority to see its oppressiveness & adjust.
1
On second thought the first line is not entirely true, if one is not speaking of political movements per se but also if the many groups that have almost wanted an alternative politics from colonial Pennsylvania to nineteenth c utopian groups to 20 c fundamentalists. The point is that communitarianism and solidarity are not often proposed as political traditions for the country to follow in general as Douthat seems to be doing, which, as in 20 c political thought, tends to arise as an alternative to the at least perceived breakdown of modern categories and thought, especially those of the Enlightenment.
Methodism as practiced by people like Hillary Clinton is all about communitarianism as a path to Christian "Heaven". That's where "It Takes a Village" comes from.
1
Methodism as practiced by Hillary Clinton at places like Foundry church in DC is a more or less direct descendant of the Social Gospel of Walter Rauschenbusch, which was still very focused on society as a whole becoming redeemed and made more like a heaven through social activism and effort. Community organizing and the like are added to this as locally important catalysts for social change but usually as part of broader social (usually national) movements. The black church would be another example, from the 19th c. onward. I suppose early 20th c. socialism as well. But I see all of these as quite different from Douthat's appeal to communitarianism, perhaps with socialism the exception, because none of these denied what Douthat so disdains in what he sees as Kennedy's Emersonian emphasis on self-reliance for intellectual integrity and the like (as opposed to economic individualism). For Douthat, it would seem, communitarianism is appealing because he dislikes the individual being given the epistemic and intellectual value Kennedy (he thinks following Emerson) accords them. That's where the rub is. Rauschenbush was a Baptist, and liberal Baptists and Methodists some of its most ardent proponents, and the social emphasis went hand in hand with the remnants of the evangelical individualism that had been part and parcel of these movements in the 19th c. MLK, a Baptist, was a product of the black experience of oppression and versions of the same intellectual movements.
Ah, Justice Kennedy, who stepped down at Trump's urging. Something for nothing? Not in Washington. Not in politics.
Resignation, that's the quid, so what's the quo?
With five Trumpist seats on the Supreme Court, how likely is it that Trump will be called to account during his term, his terms, for whatever illegalities antedated his inauguration? Not very. How likely is it that Trump will extend clemency to those who committed crimes for him, or will quash investigations into those crimes? Very.
Money-laundering from Russia to Trump, through Deutsche Bank, where Justice Kennedy's son was richly employed. Have we a hint at the quo?
93
Douthat says Justice Kennedy consolidating the judiciary’s imperial role and aggressively employing judicial activism is a bad thing, yet insists those same imperial powers and activism are now necessary to fix all the destruction caused by the terrible "years of Obama's Caesarism". Thankfully, according to Douthat, all that imperial power now rests with the benevolent and good Chief Justice Roberts. Douthat never cared about restraining judicial activism, only that right-wing ideologues were the activists. Douthat has the gall to pretend that right-wing judicial activism is necessary because President Obama became an absolute dictator, not restricted in any way by the constitution, laws, or his political opposition (Caesarism). This grand lie is a justification for right-wing authoritarianism. If, as Douthat contends, Obama was in fact a dictator, how did Mitch McConnell manage to veto everything Obama agreed with, even Republican legislation? How did McConnell repeatedly force the country to the verge of default if Obama did not give him everything he wanted? How did McConnell, by threatening to destabilize American democracy, force Obama to remain silent about incontrovertible evidence both he and Obama had proving Putin and Russia were interfering in our elections? How did McConnell manage to steal a Supreme Court Seat appointment from Obama (Merrick Garland) and give it to his personal pick, Neil Gorsuch instead? Douthat is no different than Trump, he's gaslighting us.
75
This is what happens when you try to govern a country in the 21st century using laws from the 18th century. The fate of 330 million people hinges on the decisions of 9 unelected Supreme Court justices.
14
While I am a leftist I have a good deal of sympathy in the above. Its one thing to deal with issues like whether or not someone can be compelled to bake a cake for a gay person of whether or not Government spokesman has to allowed to be seated in a particular restaurant: Aside from the emotions the objective damage is relatively trivial. The rule of law is a good thing in principal, but the civil war shows that if an issue is important enough for powerful vested interests to dispute, there will be an insurrection. Bush vs. Gore, which could easily have cost the society trillions if Gore chose not to go into Iraq and Afghanistan. The unwillingness to count votes due to alleged procedural issues discredited these so called legal scholars forever in my mind. My respect for the "rule of Law", that is the monarchical rule by an elite appointed by presidents for life is limited to being unwilling to fight the soldiers of the Federal Government. If we have need of such a court at all all justices should have to pass an entrance exam and afterwards be elected for limited say 14 year terms. I have much more faith in a Jury than a set of elite judges which in the past decided African Americans were appropriate property, that its okay to throw elections by purchase and not counting the vote, and that banning Muslims from travel to the U.S. is cool if a bigoted President says so. A non-elitist, democratic approach would let the public vote on issues like this.
5
"Scalia’s originalism"? If Scalia were an originalist, as Douthat claims, the District of Columbia v. Heller, 554 U.S. 570 (2008) decision would have been that an individual's right to possess a firearm would be the right to possess a musket for service in a state malitia, if the state still had a malitia. Saclaia was no olriginalist; Douthat is perpetuating the myth.
46
The right to bear arms goes back further than muskets. That version of originalism would give a right to swords, daggers, spears, clubs, and crossbows.
Actually, all of those are now banned in many states.
The right to bear arms is only guns.
Further, it is only some guns, not machine guns, nor those over .50 with smokeless powder, nor those with the wrong barrel lengths, and more. That is the "reasonable regulation" part.
The debate has long departed fact, into issue advocacy.
7
Like Anthony Kennedy's decisions, Mr. Douthat's piece is a little muddled.He might have been clearer if he classified Supreme Court decision-making into the originalist pot and the living constitution one. Scalia was an originalist, as is Roberts, Alioto, Thomas, and Gorsuch. His friend, the notorious RBG believes in a living constitution, one that takes into account wiretapping, facial recognition technology, e-mails, and hacking.
Anthony Kennedy was wishy-washy. On some topics like gay rights and same -sex marriage, he was will to take into account changing mores and to create new rights. On gun rights, money being equivalent to free speech, voting rights, and the rights of immigrants and blacks, he was an originalist.
His opinions were mediocre and poorly written. Legal historians will not rank him anywhere near the most recent greats: Robert H. Jackson and Felix Frankfurter. His influence on the law will be less than that of Henry Friendly and Richard Posner, lower-court judges.
5
Kudos for introducing me to the concept of the Supreme Court acting more monarchical as our elected representatives shirk their duties, but I must take exception to a couple of your reflexive digs at liberals.
First, what "anti-clericalism of the left"? While it's probably true that most atheists are liberals, it is not true that most liberals are atheists. The difference between liberal and conservative ideas of religion is that liberals believe in the separation of church and state. A woman's decision to abort a fetus is between her and her god/conscience. What gives you (or some dude in Rome) the right to dictate otherwise?
Second, you (as well as your conservative colleague David Brooks) imply that conservatives seek "a more communitarian vision" than liberals, that liberals are focused more on individualism. That is laughable. Sharing resources to help the community via healthcare for all, lower-cost education for all, equal voting access for all, and of course wedding cake for all, are liberal values. Your conservative cohort only cares about its own.
118
A true Christian would be liberal. Ask the Pope. Then again, Douthat is more Catholic than the Pope, and does not like the Pope. Douthat's religion rejects the Catholic Pope and his ideas, as much as it rejects "liberals."
14
As an Eisenhower-ish conservative, Douthat basically makes two mistakes:
1. Originalism vs Stare Decisis - "I favor a more limited role for our robed archons." This was the historic belief of conservatives. But it fails to recognize that liberal Justices have no regard for humility and less for the Constitution. Conservative Justices have constituted a majority on the Court for over 30 years. Yet, most of the Warren and Berger Courts "bench legislating" have remained in effect - Baake, Roe, Chevron and (until recently) Abood. As Goldwater said, "" moderation in the pursuit of justice is no virtue".
For a better explanation, see Prof Barnett of Georgetown.
https://www.wsj.com/articles/two-questions-for-donald-trumps-supreme-cou...
2. Individual vs Collective - Douthat has long reminisced for an earlier time when Americans were more comfortable acting collectively. "... Community and solidarity need to have their day." But this again misses the point that liberal belief in "community" is really a euphemism for redistribution. Consider Sen Booker's speech before the DNC in 2016 - "Let me tell you, we cannot devolve into our — to a nation where our highest aspirations are that we just tolerate each other. We are not called to be a nation of tolerance. We are called to be a nation of love." When a liberal (or faux conservative) talks of love, it's time to check your wallet.
4
Sorry, bit your deliberate distortions of "liberalism" are simply ridiculous.
4
There is very little attention paid to the possible connection of the thinking and decision making of the Supreme Court to its religious composition. Now, still including Justice Kennedy, there are 5 Roman Catholics, 3 Judaics (possible of the Reform persuasion), and 1 on the fence between being an Episcopalian and Roman Catholic.
2
Wrong. The Republican Party was never interested in curbing so-called " judicial activism." That phrase is simply a marketing term invented by GOP consultants and pollsters.
Rather, Republicans were interested only in any judicial acts that served their purposes. If a decision was perceived as anti-GOP, it was tagged as "activism." If it hewed to their belief system, it was "correctly adjudicated."
To imagine otherwise is pure folly.
25
We learned far more about Justice Kennedy from his willingness to have Mr. trump choose his successor than we ever learned from his supposed 'centrist' leanings on the Court.
90
All you need to know about Justice Kennedy is captured in his "timely" resignation.
Now we finally know what Ivanka's unpaid job is ... she's there to woo aging judges and reassure them that her Daddy will appoint judges who will further the Republican agenda:
https://www.nytimes.com/2018/06/28/us/politics/trump-anthony-kennedy-ret...
Turns out Kennedy's son, Justin, was responsible for lending well over $1 billion in loans while the younger Kennedy was at Deutsche Bank, where he eventually become the bank’s global head of real estate capital markets:
https://www.esquire.com/news-politics/politics/a21999314/anthony-kennedy...
In fact, moments after Trump's first address to Congress in February 2017, as he made his way out of the chamber, Trump paused to chat withJustice Kennedy. “Say hello to your boy,” Trump said. “Special guy.”
The Republican rot is everywhere, in plain view, for the entire world to see.
162
Odd, that Douthat would claim to deplore "judicial activism" at the same he celebrates the most activist right-wing court in generations -- stopping vote counts, seeking out ways to eliminate curbs on public corruption, encouraging wholesale bribery of public officials, routinely subverting Congressional intent, even when the authors of those laws are present to object.
And while he insists on referring to ending the life of clumps of cells as "killing inconvenient innocents", the daily wanton killings of civilians abroad by the U.S. and its surrogates doesn't appear to trouble him in the slightest -- certainly not in these pages.
How comforting it must be, to live a life of slogans.
92
Astonishing in this column, is the acquiescence, from a voice on the right, that we are where we are: with an imperial court, ruling from the bench. The difference is that now it shall rule for favorably, we can assume and the author surmises, on matters of abortion and religion. And if it means taking down the walls separating church and state, accepting a more muscular, if "limited" posture. In short, we've come 180 degrees in what we expect from and hope for in our highest justices. How it has come to be from a party that has won one popular election in 30 years is something I wish a more objective and imperial court would take up.
15
Kennedy's legacy and place in history will not be settled until the recent revelations of the Trump-Kennedy relationships with Justice Kennedy's son, Justin, the largest lender to Trump Inc. in his capacity at Deutsche Bank are more fully examined. Were Trump appointments of Kennedy's past law clerks a payoff? Was the Deutsche Bank billion provided to Trump Russian money that needed laundering? If so, Justin might need a Presidential pardon in the near future.
Given Justice Kennedy's recent very conservative votes, the questions to be answered are "Did Justice Kennedy sell his votes? Did Justice Kennedy sell his seat on the Supreme Court to protect his son?"
Mr. Mueller?
186
Oops! The judicial branch was intended to be the non-partisan body that maintained the democratic structures & statutes enacted and enforced by the legislative and executive branches. The Justices of the Supreme Court especially, but all Federal Justices were to be selected based upon the impeccable character and mastery of juris prudence. The concept that ideology of any kind would play a role on the selection of judges or in the performance of their duties was anathema to the founding fathers, including the first ChiefJustice, John Marshall and every other chief justice that followed for well over 100 years.
The fact that nominees for the Supreme Court are routinely evaluated based on a "conservative" or "liberal" ideology is absolute proof that our judiciary has been corrupted beyond recognition.
The Supreme Court of the United States is no longer a functioning deliberative body. It has been corrupted into a "Super Legislature". Life-time appointments! The Court has been contemptuous of legal precedent and the logical interpretation of statutes for at least a generation. Now we assume major court decisions will be reversed as soon as the ideological make-up of the court can be changed. In years preceeding the "Super Legislature", the transparent mis-interpretation of statutes & legal precedent was basically unthinkable. The discussion in this op-ed assumes that the Super Legislature model was the original intent of the Founding Fathers.
That is a monumental tragedy!
51
Let the gerrymandering begin. Big time. Like I've said many times before,
"When the voting system is so rigged as to give a minority the ability to rule over the majority, by definition we no longer have a democracy."
65
It ain’t so simple. In democracy the minority is also ruled by its own consent. The real issue is how the consent of the minority is obtained.
1
I am struck by one fact of life about the court that defies convention. Brown v the Board of Education of Topeka, Kansas was in 1954 the most contentious issue possible. Chief Justice Warren, a Republican, led a unanimous decision, 9-0 in rendering separate but equal unconstitutional. Warren appreciated the significance of the Court being united on the issue.
Will Roberts with his many gifts ever produce a 9-0 decision on a issue of consequence? I hope he does.
5
Roberts lacks a moral center. We'll never see that sort of decision from "his" court.
2
I sympathize with Ross’s cud-chewing ruminations on imperialism; but as they relate to Anthony Kennedy, they’re too extreme in intensity, given that Kennedy, like other SCOTUS justices, has been operating for a very long time in the absence of a Congress that was worth a damn. SOMEBODY needs to move us forward, even if carefully and aware of the proper limitations of the role of courts. That’s not “imperial” in the sense of a Warren Court, but balanced, responsible … and careful. It’s really place-holding awaiting the emergence of a Congress that takes its responsibilities to govern seriously.
I’ve always believed that the best jurist is an imprecise tool, not cast for one sole purpose but capable of being used effectively in multiple applications. In this, Kennedy was more effective than Scalia, who was the poster-boy for conservative purism. So I don’t condemn him, as Ross does, for his apparent lack of a “particularly coherent constitutional theory”.
Yet Ross would like to see vindication of Citizens United AND vacating Roe v. Wade. Actually, while a Republican, I’m not sure that I favor the former and know beyond question that I reject the latter. Kennedy more or less satisfied me on both issues, although on the first it was a very close call and may have been the wrong one. But someone needed to make that call in Congress absentia.
Like Ross, I …
1
… strongly favor a limited role for our jurists, deferring to legislatures. But when legislatures refuse to guide us, someone else MUST. In the end, I agree with Ross that stridently imperial means of Court governance are unwise, but I don’t believe that Kennedy fits that description very closely.
1
This justice’s legacy will likely be how he caved in to pressure to retire from trump, stoking the egos on both sides, on both sides, and, in so doing, helped push the United States down the sewer pipe.
Our country will be changed for decades, at least, by a one-sided Supreme Court.
And justice gorsuch’s recent votes show his bias and the dishonesty in his confirmation hearing testimony.
I hope the senate learned the correct lesson from this example.
35
If Justice Kennedy was imperial, Ross, what would you call Mitch McConnell, who would not even allow President Obama's Supreme Court nominee a hearing?
174
A tyrant throwing a legislative missy fit.
2
Justice Anthony Kennedy's belief in a person's "right to define his own concept of existence, of meaning, of the universe, and of the mystery of human life”?
If Anthony Kennedy were to have presided along with the other judges over the trial of Socrates in ancient Athens he would have sided with Socrates, would not have condemned Socrates to death. In ancient Athens the judges who condemned Socrates to death, and one of the judges might have been a judge David Brooks, used as one of their primary defenses that they were defending the community, that Socrates was an individual corrupting the youth, that Socrates was a monad in judge Brooks's Leibniz anticipating conception, and that for the good of the community the individual must sometimes be sacrificed.
Never mind that today Socrates is remembered as far more a flower of the community than the judges at his trial, that the judges at his trial for all their defense of the community against Socrates have been exposed as largely being out for themselves, that Socrates was a challenge to their self-appointed role as leaders of the flock. Today we are in a replay of Socrates' trial in Athens. Today we have the self-appointed leaders of the community of both the left and right ready to condemn any challenge to their role as "selfishness, individuality, corruption, harm to the community" and once again the best and brightest minds, the hope in better community beyond today are threatened with extirpation.
Cowards. Again.
2
Kennedy's self-righteous opinion writing was unreadable, and his logic, a critical component of proper argument, was more often than not ridiculously lacking. I fear where the new Court will take the country, fearing for the right to choose, for gay rights, for civil rights, for voting rights, and for consumer rights, but if I never have to read another Kennedy opinion, that will at least be a small blessing. For moderates, our only hope is that John Roberts pushes back as a reaction to overzealous right-wing-ism.
9
I used to fret over Kennedy retiring, but now that he's going I am already not missing him. When I look at his scorecard now with a cold eye I see he didn't put up many points for a better America. I'm fact, I realize how exhausted I've been from spending so much gratitude on him for the very few wise decisions he's made.
One other thing, Ross: how am I to take your work seriously when you say something like "Obama's Caesarism?" I get your point, and it's ridiculous.
149
Those were not "wise" decisions. You just agreed with those particular outcomes.
"Politics abhors a vacuum, and judicial activism increasingly fills the empty space created by legislative sclerosis and political cowardice,.."
It's always very clarifying how the charge of "judicial activism" seems to hinge upon the "strike zones" of the judges, if you allow me to use Judge Robert's painfully disingenuous and simplistic analogy.
One man's "activism" is another man's "strict constructionist" (ugh) legal interpretation, and on and on.
As far as Kennedy is concerned, I noted in op-ed's prior to this one that he seemed to be a half baked, semi-closeted libertarian, which ultimately provided liberals like myself with an occasional, if not insignificant "tease" with his rulings in support of abortion and gay rights.
Your intellectual disrespect of Kennedy comes from that libertarian itch that he just had to scratch now and then, as you seem to indicate that somehow exhibits intellectual incoherence or a lack of an integrated judicial vision.
While I'm no fan of Kennedy, I would have to take issue with that. You don't like him simply because his libertarian leanings ran straight up against your religiosity.
He had the guts once in a while to call that third strike, and that is something the other GOP leaning judges ever did.
Yes, he was petty and full of himself. He was human.
5
The shock and subsequent declarations of impending doom that followed Justice Kennedy's announced retirement, serve to illustrate our profound inability, as the educated & engaged citizens of a democracy, to respond with grace & wisdom to the inevitable. We responded to this event as if we had been struck by lightning
3
mike-4vfr-Oh, you mean like Donald Trump responds with grace and wisdom?
When the most ignorant president the US has ever had, also a sociopath and a foul-mouthed bully, is to appoint a Supreme Court Justice, shock, outrage and fear are very appropriate responses. You had better relish your days as an engaged citizen of a democracy. With this new Justice, those days may be coming to an end a lot sooner than you think.
5
"I admired Scalia’s originalism precisely because it establishes plausible (if, of course, debatable) limits on judicial activism..."
Even for Douthat this is laughable. Whether he was declaring Bush president in 2000, inventing entirely new rights for corporations out of thin air so they could buy elections, or gutting the voting rights act so that Republicans could disenfranchise minorities, Scalia did not show restraint, consistency, principle or even basic decency. He was a reliable hack for Republican interests, and that is why Douthat found him so admirable.
But what Douthat does not understand (or pretends not to) is that Kennedy was part of the same charade. Even on the issues that infuriated social conservatives, Kennedy was operating in the GOP's best interest. Republicans do not want things like gay marriage or abortion on the ballot because they are popular. Kennedy gave Republicans the best possible situation: consistent votes for the interests of its donors and its attacks on democracy while convincing Christian conservatives to vote against the common good because they were always just one more judge away.
But now the jig is up and they will be expected to deliver on things that might ultimately help destroy their minority rule plutocracy. For once, it's actually hard to predict what will happen.
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I have to agree with you comments and would add a couple of things.
First your comment about gay marriage. The legislative process ran out due to unwillingness of Republicans passing laws allowing out of state gay marriages being recognized by other states to pass civil unions and let the “churches” do the marriages. There really was no choice but to protect people by having loved ones take care of each other.
Secondly I also agree that Scalia was not consistent with regard to constitutional principles. He was more loyal if they were consistent with Catholic principles than individual liberty despite his sharp intellect.
He didn’t appear to me that he’s trusted the individual to collectively crystallize morality except through coercive legislative rules. The Scalia like votes on Muslim bans ignores Article VI and that there should be any check and balances on presidential power. That’s not original interpretation. It’s religious discrimination.
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Something about the black robes, lifetime terms, highly partisan appointment process and the awesome power of decisions often made by a single vote strikes me as very anachronistic, like the Star Chamber of 1400s to 1600s England.
The Star Chamber made sense in the beginning to counter royal power but eventually itself became an arbitrary weapon to be used against political enemies. The British who prefer to tinker with things like their cars when they don't work, abolished the Star Court after a couple hundred years.
But the American Constitution is virtually impossible to tinker with, as the hood is welded shut. So we live with utterly unaccountable Justices, a Senate that looks more like the House of Lords than a representative body of the people and "brilliant" decisions like Citizens United.
Chief Justice Roberts should borrow Melania's "I don't really care" coat for the next SOTU address.
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Members of the House report that they spend over 20% of their time raising money from donors. The donors run a "money primary" that most candidates have to hurdle before either of the two parties will have them on the ballots in the actual primaries.
Is the House beholden to The People (as in, "We the People of the United States. . . .") or to the donors? That's a really easy question to answer if you've been paying attention any time since Saint Ronald Reagan won the presidency.
If you've got the time to read an actual book, read Lawrence Lessig's Republic, Lost.
We're on the slippery slope and gaining momentum.
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Conservatives favor a more limited role of the courts because they’d rather impose their will on the people rather than have those darn courts get in the way. The entire history of the 20th century was one of increasing the rights of people to be left alone, and not be condemned for their gender, race, sexuality, age or health.
Well, conservatives are furious, and they’re not having any of it. They applaud the courts when they allow people to be stepped on by corporations, hypocritical religions nuts or the rich. But they rise in furious indignation if a gay couple tries to commission a wedding cake.
The role of the courts should be to refine the law and accommodate what we’ve learned over the past 241 years. Conservatives would be just fine if the prejudices and flawed understandings of science held by people more than two centuries ago were sacrosanct, since by many measures they’re stuck at least that far in the past.
Personally, the conservative folks who surround me in semi-rural Ohio (it’s not Boston anymore) can pry my freedom of association and my freedom from religion from my cold, dead fingers. For that reason, we’re not going backwards any time soon. Abortion is settled law, and ideas about when the soul enters the fetus are simply absurd anachronisms that have no place in the 21st century. And please keep your hands off my genitals, rhetorically speaking.
If stupid beliefs infect a community, it’s not for the courts to overrule common sense.
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The trend "of increasing the rights of people to be left alone" has occurred throughout Europe as well an in Canada, Australia and a number of other places. Most of the time, this happened via legislative action or public referenda; it hasn't depended on courts inventing new constitutional imperatives.
The United States political system and its legal system are both broken due to the US reliance on the courts to determine important political issues. The court, as far as practical, should function as a neutral umpire, not a political prize to be captured.
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I am happy to hear that there is a reliable voice of reason in red country. Better you than I.
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@ gemli Well if more folks like you move to Ohio, your votes could tilt important elections in the "right", i.e., proper direction.
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Ross, Your conclusion that a Justice Robert's-controlled court could "further a somewhat more communitarian vision" upon the replacement of Justice Kennedy with a more "conservative" justice is incorrect.
For one, the fact Justice Roberts dissented against the majority on national gay rights is proof that he has a much stronger fealty to religious bigotry than to any conservative or libertarian principles. It is both a departure from the most central of a true conservative's tenets - the rights of the individual - and is blatantly anti-communitarian.
Additionally, Trump has a self-confessed one-item litmus test for his next Appointee: the willingness to overturn Roe v Wade.
Whatever one's views on abortion (mine are highly conflicted), conservative and libertarian thought traditions are both riven with highly-charged disagreement over how to weigh the rights of a pregnant woman against the rights of a fetus, and exactly when the fetus should be endowed with the rights of an individual. In this and other instances - such as the Hobby Lobby case - wherein the court held that the religious beliefs of a business owner outweigh the religious beliefs of its employees; a fundamentalist Christian-centric religious intolerance - rather than intellectual integrity - has been the watchword of John, Samuel, Neil and Clarence: the not-so-fab 4.
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As a white middle aged man I will never need an abortion. As a straight man, I will never feel the need to marry someone of the same sex. As someone with ancestors who came to this country in the 1600's, I will never be stopped at our southern border and have my children ripped from my arms. But all of this doesn't mean I don't have empathy for all the people soon to be affected by the Court's decisions. When I see a government committee/panel of men on television discussing abortion, I wonder where the women are? When I hear conservatives discussing issues concerning our LBGT communities I wonder where the representatives of the LGBT community are? And when I see immigrants seeking asylum sitting in dog kennels, I wonder not only where the children are, I also wonder where is our humanity.
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Bravo
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Ross,
Your conclusion that a Justice Robert's-controlled court could "further a somewhat more communitarian vision" upon the replacement of Justice Kennedy with a more "conservative" justice is incorrect.
For one, the fact Justice Roberts dissented against the majority on national gay rights is proof that he has a much stronger fealty to religious bigotry than to any conservative or libertarian principles. Is both a departure from the most central of a true conservative's tenets - the rights of the individual - and is blatantly anti-communitarian.
Acitionally, Trump has a self-confessed one-item litmus test for his next Appointee: the willingness to overturn Roe v Wade.
Whatever one's views on abortion (mine are highly conflicted), conservative and libertarian thought traditions are both riven with highly-charged disagreement over how to weigh the rights of a pregnant woman against the rights of a fetus, and exactly when the fetus should be endowed with the rights of an individual.
In this and other instances - such as the Hobby Lobby case - wherein the court held that the religious beliefs of a business owner outweigh the religious beliefs of its employees; a fundamentalist Christian-centric religious intolerance - rather than intellectual integrity - has been the watchword of John, Samuel, Neil and Clarence: the not-so-fab 4.
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Ross should be rooting for a renunciation of Roe v Wade, so poor women will be forced to go to quacks for an abortion, and the punishment of "libertine" women will be complete.
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That is exactly, in the silence of his mind, what Douthat is rooting for.
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If Roe v Wade is overturned, the demise of the Republican Party will be complete, too. The women forced to give birth against their will or submit themselves to back-alley abortionists will be Red State residents only. Reversing Roe won't make abortion illegal. Those of us who live in the less backward parts of the country won't be affected in the least. Long before Roe v Wade was decided, there were liberal abortion laws in states like Colorado, where I live. There will continue to be liberal abortion laws in those places if the Supreme Court decides to ignore settled law and to violate the principle of stare decisis. The Republican men gloating today will be shooting themselves in the foot. Their own daughters, wives and mistresses will be the women who suffer.
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You may continue to try to legislate morality but both it and "communitarian visions" will always come up short because individual freedoms are the ones most prized by the electorate whether they be religion and guns on one side or freedom from religion and guns on the other. I'm afraid the best you can hope for is a court that honors the rule of law over the partisan rules of politics. Unfortunately that cant happen on a Court with a stolen seat.
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Americans, divided almost 50/50, rely on SCOTUS to settle important questions their elected legislators cannot resolve.
Then they impute venial motives to the justices and protest on the steps of the court.
No judge gives a hoot about protesters standing outside the courthouse, any more than a physician pays attention to crying patients or their relatives. They have been trained to do their jobs as well as they can. Because they rule in favor of one side or another does not mean that they agree with the opinions of that side; they are simply determining whether the result reached below comports with the Constitution.
Despite popular opinion, judges are not result-oriented, but try to apply the law to the case as presented. If you know a judge, you know how hard a job it is.
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"Despite popular opinion, judges are not result-oriented, but try to apply the law to the case as presented." Come to rural Pennsyltucky and I'll introduce you to some "results oriented" judges of the Dewey, Cheatem & Howe" ilk, who apply the law to the case as presented expressly to enrich their own private coffers and those of their cronies. Predatory Capitalism on steroids! Meanwhile, as the somnambulist Public meanders through History...
4
Doctors don’t pay attention to crying patients? Seriously is that an analogy? They (justices)have to know the human effects. They learn from their life context. They’re making value judgements and their reasoning is circuitous in the Travel ban and hypocrisy is a reflection of oneself. If it were really straightforward why not one Chief Justice. Heck why even have a judiciary? Let Trump do anything he wants. Oh, that’s what we have.
3
Two articles of note were published in the last couple of days. The first is Maggie Haberman's piece about Anthony Kennedy's ties to Trump and his family and the circumstances around his retirement. The second piece, in the Wall Street Journal, is about Deutsche Bank and records being related to Trump businesses. Kennedy's son works for Deutsche Bank. The pieces are must-reads for anyone who has even the vaguest of interest in our descent into oligarchy.
That descent didn't happen with Trump's ascent to power. It is the culmination and consequence of money in politics over time.
I, for one, hope we will soon learn that Robert Mueller is issuing a subpoena or has otherwise arranged to interview Justice Kennedy. Something about the stories stinks to high heaven.
As for Kennedy's legacy? If he doesn't get caught up in the yuuge swamp that is Trump, it will be very mixed. Kennedy is no David Souter. Kennedy's last year on the bench revealed him for what he is, a fake. If Haberman's article bears out, then Kennedy will be a symbol of oligarchy and all the ugly ways oligarchies work to corrupt a nation.
---
https://www.rimaregas.com/?s=oligarchy
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For those of you who missed the WSJ or NYT pieces I mention above, here are links:
"Dan Stein, former chief of the criminal division at the Manhattan U.S. attorney’s office, said the special counsel’s subpoena of Deutsche Bank signals one of two possible directions for the broader investigation.
“Either it means they’re going beyond the narrow question of election interference,” Mr. Stein said of Mr. Mueller’s team. Or it means the question of election interference may now somehow involve the transfer of funds to the president or his family or inner circle, he said.""
https://www.wsj.com/articles/trumps-deutsche-bank-records-subpoenaed-by-...
"But they had a connection, one Mr. Trump was quick to note in the moments after his first address to Congress in February 2017. As he made his way out of the chamber, Mr. Trump paused to chat with the justice.
“Say hello to your boy,” Mr. Trump said. “Special guy.”
Mr. Trump was apparently referring to Justice Kennedy’s son, Justin. The younger Mr. Kennedy spent more than a decade at Deutsche Bank, eventually rising to become the bank’s global head of real estate capital markets, and he worked closely with Mr. Trump when he was a real estate developer, according to two people with knowledge of his role."
https://www.nytimes.com/2018/06/28/us/politics/trump-anthony-kennedy-ret...
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Thanks for the recommendations. Important reading, indeed.
1
Justice Kennedy was imperfect and some of his rulings were, um, less than judicious, but at least he was unpredictable. The individuals Trump is selecting from to fill the Highest Court are known conservative ideologues. The Supreme Court should not be filled with dyed in the wool partisans, but neither Trump nor McConnell is even trying to seem objective.
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For all of the challenges associated with defining Justice Kennedy's legacy with any degree of clarity, it is the nature of his leaving which may end up being his most lasting, and the most damaging to his own reputation.
A long ago mentor once taught me that "life is a series of snapshots." Indelible impressions can be based on single events lasting but seconds, or words numbering only a few. In Kennedy's case, his sudden departure, in the run up to what could be watershed mid-term elections in just a few months, could be that snapshot.
Whatever lack of focus Kennedy's earlier exposures might have left, the sharpness of his dealing a winning hand to Donald Trump, potentially allowing the latter to shape American life for decades to come, might turn out to be the one snapshot that Kennedy ends up wishing he hadn't posed for.
Thus are legacies formed, and it's too late for Kennedy to stop the shutter.
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QtR wrote: "In Kennedy's case, his sudden departure, in the run up to what could be watershed mid-term elections in just a few months, could be that snapshot."
Another way of putting it is that Kennedy's decision to retire could be interpreted as an unconscionable "putting the thumb on the scale," in much the same way that James Comey's ill-considered decision to reopen the Hillary Clinton e-mail server investigation did in the autumn of 2016.
Who knew that Anthony Kennedy was such a fan of Richard Nixon so as to parrot Tricky Dick: "If an Associate Justice of the Supreme Court does it, then it's not illegal."
3
the man is 81
surely you don't begrudge him retirement.
1
If Mr. Douthat wants the nation’s highest court to adhere to the constitutional intentions of the nation’s Founding Fathers from over two centuries ago, it’s because he unintentionally does so from a position of straight male white privilege. Those not born with those racial, gender, or sexual orientation markers, however, merely seek a Supreme Court that is open to protecting their rights and equal treatment by society. My message to Mr. Douthat, as a same-sex married man who has faced discrimination in his lifetime, is this: Walk a mile in my shoes...
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It is possible, and better, to advance gay rights in other ways. In recent times, both Ireland and Australia have had public votes on the issue of gay marriage. While many in the gay community deplored the fact that their rights were up for a vote, the fact is that gay marriage received a ringing public endorsement in both cases that affirmed the rights of gay people in a way that court decisions never could. Historically conservative Ireland has recently voted on the abortion issue with similar liberal effect.
Church officials and conservatives more generally, rather than feeling outraged over a court usurping democratic decision making, have had to acknowledge a public repudiation of their position. They have been taught a lesson that the public doesn't acknowledge their moral authority or agree with their views.
It is interesting to note that appointments to Australia's highest court are so uncontroversial as to be a one-day news story, not a drawn out fight over months. That is because the court interprets the law, it doesn't invent it as a means of determining major social controversies.
Democrats in the United States are consistently ineffectual. The fact that they have been able to outsource so much of their work to the courts is probably a major contributor to their failure to develop effective political skills.
8
"Judicial Activism" is code for "the Supreme Court should have let segregation remain the law of the land in those (Southern) states where it was clearly the will of the (white) people"; And "the Supreme Court should have allowed the states to force women to carry fetuses in their bodies - just like it says (somewhere?) in the Constitution"; "The Supreme Court should have upheld the imprisonment of unpopular dissent - or even popular dissent - because the Government doesn't like it".
"Judicial Activism" is just one of the many marketing terms that the right has used since at least the days of Richard "Law and Order" Nixon ... "Right to LIfe" (WARNING: Do Not Confuse with "Right to Live"), "States Rights", "Politically Incorrect". The right uses these catchy terms to disguise reality and make injustice, oppression, and intolerance more palatable to people who would otherwise be disgusted by them. I used to wonder what some of the right wing "Think Tanks" staffed largely by fake academics from fake institutions actually did other than issue defenses of the largely indefensible. Apparently they spend time generating these euphemisms.
3
There is nothing "unintentional" about it.
2
"Politics abhors a vacuum, and judicial activism increasingly fills the empty space created by legislative sclerosis and political cowardice, by the unwillingness of elected representatives to act on controversial issues."
There hasn't been much judicial activism. There's been a good bit of judicial spite from the Supreme Court on the conservative side. And the reason our elected representatives don't act on controversial issues is because they are awaiting commands from their rich donors/owners on which way to jump.
I've watched my country change from a place where there was room for the middle and working classes to have decent lives to a place where everything can be lost once a job is lost and not replaced, medical care is required, or worse. I've seen the resurgence of bigotry and racism that should have died or been replaced with knowledge that skin color, accents, religion, gender, sexual preferences do not make a person worth less than another person.
But I've watched who we've elected to serve us and I see their attitudes. And then I understand exactly why we're seeing what we're seeing and Kennedy, like Trump, was where he was because of us. Our votes put him there. If we don't like what's happening we need to change who we vote for.
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But don't forget that more of us actually voted for Clinton. Abolish (or neuter) the Electoral College!
1
I must keep pointing out that WE did NOT elect Trump. Roughly 77,000 misguided fools in three states (MI, WI, PA) delivered the modest electoral college "victory" over nearly 3 million more Americans who voted FOR HRC.
Oh yea... add in:
Citizens United (in a criminal takeover of our Democracy)
WikiLeaks (who else noticed that ALL their "leaks" exclusively hurt Democrats and there were NO "leaks" about republicans. Hmm suspicious isn't it.
Comey letter
Russian meddling
Social media manipulation
Republican suppression of voting
Extreme gerrymandering by Republicans
1
Anthony Kennedy was a member of the dying breed of Libertarian Republicans. The new Republican Party is very much an authoritarian party, and Kennedy's replacement is likely to favor Presidential, Corporate and religious power at the expense of individual liberty.
I think we are going to miss him.
32
The problem, of course, with the type of libertarian leanings that Ross Douthat imputes from Kennedy's opinions is the same thing that's wrong with unfettered capitialist competition--eventually, someone or several someones starts to win the competition, and then tries very hard to use its/their newfound wealth/power to cut short the competition and bind up all the resources for it/themselves.
Libertarianism unbounded by strict statutory limits on economic behavior will eventually result in somebody being stepped on, over and over again. Personal freedom is a much different animal than economic freedom, despite the conservative tendency to equate the two. Personal freedom of lifestyle is much less likely to result in political restrictions on those of other lifestyles than total economic freedom is likely to result in the restriction of those on other lifestyles, as economic victors get to lord their victory over others unless there are VERY specific legal barriers in place--you know, like antitrust law and the Fairness Doctrine and public funding of elections.
The fact that I can mention the first two shows that we used to have a better sense of this than we do now; the fact that we still do not have the third means we're behind a lot of other advanced countries. But we definitely need to institute the third and reinstitute the first two, along with a number of other strict laws about corporate behavior allowances. Without these, oligarchy is unavoidable.
102
Libertarianism is founded on the entire unsupportable belief that everyone will automatically act out of benevolent self-interest in the enlightened interest of civilization.
2
Good riddance, Anthony Kennedy!
All the respect accorded by the bar and popular imagination was due entirely to him finding himself in the middle of an increasingly fractured court. Well, it will be fractured no longer.
Now that Kennedy's career is entirely in the rearview mirror, it seems fair on balance to characterize him as a weak-willed, intellectually feeble kind of clown, and perhaps, considering the timing of his retirement, a dupe (or complicit, considering that his son was Trump’s banker at Deutschebank).
Kennedy gave a few crumbs on affirmative action and gay rights, but he was wrong on issues core to democracy: he cast deciding votes destroying campaign finance regulation and removing the eye teeth from the Voting Rights Act, among others.
I'm not sympathetic to Kennedy's age or the pleadings of his wife. You take the top Court job and you sign on to higher priorities. Soldiers and cops die for their country every day. Where the fate of democracy is in the balance, it's not too much to ask the same of a Supreme Court justice. In fact, the timing of his retirement not only ensures a hard right successor, but will also juice Republican turnout in the mid-terms.
What a legacy.
Progressives have put way too much emphasis on top-down judicial process for way too long. Maybe now with Kennedy gone, scales will fall from eyes, and progressives will return to their roots of organizing the people and seeking change thru the legislature where it will be better rooted.
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You predict that progressives will return to their roots of organizing the people and seeking change thru the legislature where it will be better rooted. That isn't the way it's going to play out unfortunately...even liberals are starting to realize this. The Republicans have a master plan. Trump will be gone one day. They will still be here. They will wait him out & in the end achieve all of their goals. Their plan is simple. Control the Supreme Court. Controlling SCOTUS is the grand slam that ends the ball game. Control SCOTUS & you destroy the liberal agenda once & for all. The legal arm of the conservative movement is probably the best organized, most far-reaching & far-seeing sector of the Right. They truly are in it — and have been in it — for the long game. Archimedes said give me a place to stand and with a lever I will move the whole world. With this embrace of the judiciary as its bastion of power, the Right has found it's lever and place to stand. It's ironic that a movement that came to power on the basis of a populist surge against “activist judges” has come to depend upon the judiciary as its most reliable weapon. Control the Supreme Court, stack the judiciary, and you can stop the progressive movement, no matter how popular it is, no matter how much legislative power it has, for decades. Long after Trump is gone, the right will be relying upon the judiciary — and behind that, the Constitution — to protect, enlarge, and consolidate their gains.
3
Waffling in the center puts people like Kennedy in the spotlight.
1
We will have the most corrupt judiciary hedge fund manager money can buy.
I agree with a previous comment that conservatives use so-called originalism as a fig leaf to legislate from the bench. In Heller, Scalia read words into the second amendment that were not written on the page.
One of these days, I hope, people who are against abortion rights will understand that those of US who argue the pro-choice position are defending a woman's right to bring a pregnancy to term. If the state can tell a woman that she MUST have a baby. The state can tell her that she MUST NOT have a baby.
The 10th amendment of the Constitution says that powers not given to the federal government are reserved to the states and to the People. Women are people who ought to have power over what happens with their bodies because the moment persons lose this, they become slaves to the will of another entity.
We will not allow this to happen no matter who is on the Supreme Court.
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Who gave away autonomy over the internal operations of our own bodies to any government in the first place?
2
Moreover, those who generally argue for smaller, less intrusive government often leave their principles, very loosely defined, on the sidelines when it suits them. That is called hypocrisy.
Much of Roman Catholicism is claiming to know what Jesus thought.
Funny about the notion of originalism (and Anthony Scalia). Originalism is delusion, or results from ignorance. The founders did not have one intention when they wrote our constitution, that had at least two sets of ideas and in some instances even more. We know with certainty that some of the founders thought the constitution was a flexible document, able to evolve with the times. And even those who did not, ended up doing what the constitution did not anticipate, as with the Louisiana Purchase. And when the president, a Virginian, opposed the Erie Canal, he did so not out of principle, but because he feared that Virginia would lose power compared to New York.
I style myself a conservative in a very old fashioned manner, so I respect our institutions as far as they deserve respect, and respect the culture that founded us - the protestant culture that found my catholic ancestors an abomination.
But the notion that behind any of our laws are deep principles, so as deep as the principles that operate in physics, is just nonsense.
Worse still is the conservatism that is reflected in the current day Republican Party. To this former Republican, it is at best an excuse for greed, and funded largely by the very rich so that they can keep every last dime of theirs.
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Neglect of physics is rampant in this infantile land. It can't even get its foot up onto the first step of the ladder: converting to the Metric System of measurement.
1
Scalia probably believed he communed with the Founders in his dreams.
1
Yes. That says it.
In his own way Scalia was a very activist judge. Just look at his judgement on the Second Amendment which now give the right to criminals, terrorists and mentally l to bear arms. But Ross Douthat is right on one point. The reason why you have judiciary activism is because the Congress is useless and it creates "a vacuum, and judicial activism increasingly fills the empty created by legislative sclerosis and political cowardice" as Douthat write so well. So if you want "a more limited role for our robed archons", you have to elect politicians willing to do their job.
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