Justice Kennedy: The Worst Justice
Why did the Founders bother toiling in the summer heat of Philadelphia in 1787 writing a Constitution when they could have relied on the consciences of Supreme Court justices like Anthony Kennedy instead?
Kennedy is the Supreme Court’s most important swing vote and its worst justice. Whatever else you think of them, a Justice Scalia or Ginsburg has a consistent judicial philosophy, while Kennedy expects the nation to bend to his moral whimsy. With apologies to Louis XIV, Kennedy might as well declare “la constitution, c’est moi!”
Lowry’s sentiments find resonance in the statement of Justin Levine yesterday:
Kennedy has proven that he does not have the temperament worthy of the power afforded to those sitting on the nation’s highest court. I say this even though the practical results of his decisions will more often comport with my own views when compared with some other Justices of the Court. But if I had the power to vote one (and only one) Justice off the island, Kennedy would easily be the first choice.
I don’t know if I’d go quite that far — but he’s certainly the justice I respect the least. Kennedy is smug and patronizing; a toady to elite opinion. He is serenely indifferent to the chaos and turmoil his poorly reasoned decisions cause to the legal system. His flowery and meaningless language provides litle guidance to lower courts, which are often thrown into confusion by his obtuse phrases — but no matter. The key is to be quoted in the New York Times, rather than to be understood by the judges who must carry out his diktats.
The ultimate clue to his result-oriented jurisprudence comes in the public reaction to the fact that Kennedy fundamentally misstated the extent of support for the death penalty for child rape. Linda Greenhouse says that Kennedy’s factual mistake related to “a central part of the court’s analysis.” Yet no legal observer believes, even for a moment, that Kennedy will change his mind, simply because a critical pillar of his analysis has been shown to be flawed.
Everybody knows that he decides on the result and reasons backwards from it.
Nobody thinks that the facts actually matter to him.
You want Kennedy to consider changing his vote? Show him that the editors of the New York Times decry his decision. But don’t bother the man with facts going to the essence of his analysis.
Yes, Lowry is right. Even though Kennedy very often gets the result right, he is the nation’s worst justice. He is a model of what a justice should not be: drunk on his own power, yet at the same time, utterly powerless in his groveling to the dictates of elite opinion.
You can despise the results reached by a David Souter or a Stephen Breyer, but at least you can respect them.
I can’t respect Justice Kennedy.
He didn’t start out as the Emperor of America, and Ronald Reagan certainly had no reason to believe that’s what he would become, but Anthony Kennedy has indeed acquired, and frequently uses, the sort of power that would go with that position.
I do not think he is a bad man. Nor do I think that Justices Stevens, Ginsburg, Breyer, or Souter are bad people.
Nor do I think that Justice Kennedy shares with those other four the sort of burning do-gooder mentality that is always receptive to the positions of the political Left.
What he shares with them — in distinct opposition to Chief Justice Roberts — is what the Chief Justice referred to in his confirmation hearings as a sense of “judicial modesty.” That is, Justice Kennedy, in sitting down to overturn an Act of Congress or a statute of one of the 50 states, never has a moment of pause to say, “Who am I, to be doing this? And why am I so sure my judgment on this should trump the people’s judgment (as expressed through their legislative and executive branches)?”
I’m not hostile to the fundamental concept of judicial review. If Congress were to pass, and the President to sign, a statute tomorrow which said, “Based on what he’s written, take that Patterico fellow immediately to prison, torture a confession from him, and then execute him by the slowest and most painful means; and by the way, the federal courts are stripped of jurisdiction to hear his habeas petition,” then I’d have no trouble with the Supreme Court finding that statute unconstitutional on a variety of different bases that are very explicitly contained in the actual, you know, Constitution.
But when he scolds the Congress and the president for following the very prescription proposed by the SCOTUS in previous detainee cases, and instead uses the occasion to fundamentally alter our historic notion of who is entitled to claim rights under our Constitution — there is a man whose professional arrogance exceeds that of Louis XIV or Napolean.
But he is answerable to no one.
Beldar (7bc9b6) — 7/3/2008 @ 7:28 amAck. What he shares with the four liberal justices, I meant to write, is the LACK of a sense of “judicial modesty.”
Beldar (7bc9b6) — 7/3/2008 @ 7:29 amThe NYT today:
“In a highly unusual admission of error, the Justice Department acknowledged on Wednesday that government lawyers should have known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Supreme Court of that fact while the justices were considering whether death was a constitutional punishment for the crime. “
http://www.nytimes.com/2008/07/03/us/03scotus.html?_r=1&ref=us&oref=slogin
Louisiana is considering asking for a reconsideration with Jindal involved in the process. Perhaps the level of outrage re the decision itself, coupled with this serious mistake will possibly, at the least, shame Kennedy into a revisit…
Dana (a61bbb) — 7/3/2008 @ 7:31 amWe all know that the SCOTUS has no practical checks and balances. Sometimes I wonder if they would rule new Amendments as “unconstitutional”.
Right now, if SCOTUS ruled tommorrow that elections are not needed under and that they will be delegating out political power henceforth, the other two branches would roll over and play dead.
Techie (361419) — 7/3/2008 @ 7:51 am“Perhaps the level of outrage re the decision itself, coupled with this serious mistake will possibly, at the least, shame Kennedy into a revisit…”
Shame from a guy “whose professional arrogance exceeds that of Louis XIV or Napolean.”
Not bloody likely.
brobin (c07c20) — 7/3/2008 @ 8:53 amWhat about Ruth Buzzy-Ginsberg?
The woman is a died in the wool communist. Former ACLU bigshot. She is on the wrong side of everything. Or by being female and Jewish she is untouchable?
martin (0bd3dd) — 7/3/2008 @ 9:00 amI disagree with the second-to-last sentence, Patterico. I can’t respect Breyer either because he’s such a flaming hypocrite. Read his book Active Liberty, which allegedly sets forth his theory of constitutional interpretation. (Actually, I’m going to bet that you’ve read it, since you’re a Supreme Court nerd just like we all are.) As I think you’ll remember, the book doesn’t discuss, or even suggest, how abortion or capital punishment fits into his theory of constitutional interpretation. That’s because his “theory” is totally inconsistent with his jurisprudence on those issues. You can see this when Breyer is asked about abortion–he refuses to answer, because he can’t defend his record. (At least, he did back in 2006 and I think 2007. I stopped watching him in 2007 because I just couldn’t stand all the hypocrisy anymore.) And Judge Michael McConnell wrote an excellent review of Active Liberty in which he explained why Breyer is inconsistent even on those issues he did discuss.
I have a contempt for Kennedy that rivals my contempt of most other justices. But I don’t buy this “principled liberal” line about Breyer. Breyer isn’t principled. He’s as unprincipled, hypocritical, and oligarchic as Kennedy. The difference is, Breyer is smart[er]. Kennedy’s opinions (even apart from any substantive inconsistency with whatever theory he may pretend to have) read like the work of a very dull mind. Reading a Breyer opinion, I can sort of see him almost making a valid point. But then, of course, I’ll remember Breyer’s dissenting opinion in United States v. Lopez, or his invocation of the moral authority of the Zimbabwe judiciary, or any number of other votes, and remember that he’s the justice I’d most like to vote off the island.
Alan (0cf397) — 7/3/2008 @ 9:06 amI’m with techie. The Court plays a role in our system not envisioned by the founders, there are no checks on its power and the elected branches roll over and play dead when the Court strikes down a law. The men who set this country up would never stand for it. Why do we?
james23 (f2e79d) — 7/3/2008 @ 9:20 am“… yet at the same time, utterly powerless in his groveling to the dictates of elite opinion.”
This makes no sense to me, Kennedy does not always vote with elite opinion. You can argue that Kennedy is an egomanic who gives undue weight to his own preferences but I don’t see much evidence that he is trying to suck up to anybody.
James B. Shearer (bf276f) — 7/3/2008 @ 11:30 am