[posted by Justin Levine]

In light of the extremely disingenuous rulings from Justice Anthony Kennedy recently, it might be good to once again remind readers to try and seek out Jeffrey Rosen’s article from the June 18th, 2007 edition of the New Republic entitled “Supreme Leader: The Arrogance of Justice Anthony Kennedy”.

To my mind, it remains THE key analysis of Justice Kennedy’s style, and one of the best articles ever written on a sitting Supreme Court Justice.

Regretfully, the entire article no longer seems accessible on the Internet. But trust me, it is well worth seeking out in traditional print form. The entire article is pure gold, but some snippets can be found here, here and here. Many writers and commentators have recognized its significance  (with some quoting other parts of the article).

One of Kennedy’s former law clerks takes exception to the tone of the article - probably because even he suspects that Rosen is on to something here. Dorf is right in one sense - the article IS a personal attack, and a well justified one at that. If Rosen’s tone takes on the character of a personal attack, it is only because the tone of Kennedy’s opinions are personally offensive - much more so than the opinions of the consistently liberal Justices on the court which manage to be merely wrong as a matter of legal theory.

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.

[posted by Justin Levine]

Howard Kurtz notes that Big Media is failing to hold Obama’s feet to the fire for his flip-flop on firearms.

Barack Obama is under hostile fire for changing his position on the D.C. gun ban.

Oh, I’m sorry. He didn’t change his position, apparently. He reworded a clumsy statement.

That clumsy statement, which his campaign is now running away from, was pretty categorical: “Obama believes the D.C. handgun law is constitutional.” Yet, Kurtz says, the newspapers aren’t calling him to task:

But even though the earlier Obama quote and the “inartful” comment have been bouncing around the Net for 24 hours, I’m not seeing any reference to them in the morning papers. Most do what the New York Times did: “Mr. Obama, who like Mr. McCain has been on record as supporting the individual-rights view, said the ruling would ‘provide much-needed guidance to local jurisdictions across the country.’ “

Add the L.A. Times to the list. In David Savage’s piece on the Heller decision, he allowed Obama to pretend he has always supported the decision, which found unconstitutional the very ban Obama’s campaign had declared constitutional:

On the presidential campaign trail, Republican John McCain and Democrat Barack Obama were supportive of the court’s ruling.

. . . .

For his part, Obama drew a somewhat different lesson from the court’s decision. He said it endorsed both gun rights and reasonable regulation.

“I have always believed that the Second Amendment protects the rights of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures,” he said.

“I know what works in Chicago may not work in Cheyenne. We can work together to enact common-sense laws, like closing the gun-show loophole and improving our background-check system, so that guns do not fall into the hands of terrorists or criminals.”

Wouldn’t it have been helpful to tell readers that Obama’s campaign said the D.C. law was constitutional?

Yes, that would have been helpful . . . to the truth.

But not to Obama.

And increasingly, that appears to be the editors’ calculus for deciding what appears in the paper.

UPDATE: In a story today about the Obama move to the center, the editors once again allow Obama to act as though he has always been in favor of the result in Heller:

Obama’s reaction to another Supreme Court ruling, which struck down a gun ban in Washington, D.C., stood in contrast to that of many local political leaders and was more tempered than that of many liberals. Whereas his hometown mayor, Richard M. Daley of Chicago, and Los Angeles Police Chief William Bratton sharply criticized the court decision, Obama was more welcoming. He said the ruling “reinforces that if we act responsibly, we can both protect the constitutional right to bear arms and keep our communities and our children safe.”

The best they do to undercut this notion is to say that “McCain’s campaign said Obama was unable to give a clear account of whether he viewed the Washington gun ban as constitutional” and claim that Obama has given “mixed signals” on the issue. How about saying that his campaign flatly declared the ban constitutional? There’s nothing “mixed” about that signal . . .

UPDATE x2: Is this a mixed signal, or a flip-flop?

Thanks to daytrader.

Posted by WLS:

The majority opinion in Kennedy v. Louisiana (appropriate irony) authored by Justice Kennedy is a stunning exclamation point on the Court’s move this term of impose itself as the unelected sovereign dominant over all things eminating from the political branches of the various governmental entities of the United States of America.   This capstone sentence near the end of the opinion is all you need to read and absorb to fully appreciate the complete absence of guiding constitutional principle underlying the liberals+Kennedy with respect to their view of their place vis-a-vis the  representative democratic branches of the governmental units:  

“Each of these propositions, standing alone, might not establish the unconstitutionality of the death penalty for the crime of child rape.  Taken in sum, however, they demonstrate the serious negative consequences of making child rape a capital offense.  These considerations lead us to conclude, in our independent judgment, that the death penalty is not a proportional punishment for the rape of a child.”

Got that?  The “propositions” mentioned are a variety of policy arguments, not one of which has any relationship to the language of the Eighth Amendment which prohibits “cruel and unusual” punishment.  No one “proposition” standing alone makes the death penalty for child rape “cruel and unusual” in a constitutional sense.  But all of them considered together do.  

Their “independent judgment.”   F*ck all those elected officials in whom the voters have vested the authority to exercise judgment on their collective behalf.  Frankly, I can’t believe no Justice in the majority suggested to Kennedy that he remove the “our independent judgment” language.   But, then again, maybe they wanted it exactly the way Kennedy wrote it — no time for subtlety.

A few of the more precious bon mots of enlightenment courtesy of Justice Kennedy:

“When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional committment to decency and restrait.”

“It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restrait in the application of capital punishment.”

“In this context, which involves a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be ‘freakish’”.

“Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.”

“The incongruity between the crime of child rape and the harshness of the death penalty poses risks of overpunishment and counsels against a constitutional that the death penalty can be expanded to include this offense.”

“It is not at all evident that a child rape victim’s hurt is lessened when the law permits the death of the perpetrator.”

“Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice.  The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system; and this is but a subset of fundamental difficulties capital punishment can cause in the in the administration and enforcement of laws proscribing child rape.”

But, lest he be too solicitous of the child victim’s welfare, Kennedy next rips children as testifying witnesses:

“The problem of unreliable, induced, and even imagined child testimony means there is a “special risk of wrongful execution” in some child rape cases.” (Citing the ever reliable National Association of Criminal Defense Lawyers brief.)

“In most cases justice is not served by terminating the life of a perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.”  

What a beautiful sentiment.  We as taxpayers pay hundreds of millions of dollars every year to incarcerate pedophiles so that they, with the help of the “system,” might finally understand the error of their ways.

What kind of society is it that wants to cut off such meaninful and important efforts at self-enlightenment by something so barbarian as imposing the death penalty on a man who raped his 8 year old stepdaughter so savagely that a laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus.

Fortunately for all of us, he might now get the help he was so obviously crying out for courtesy of the Louisiana prison system.

 **Update:  Barack Obama has come out against the Court’s decision today: 

“I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes,” Obama said at a news conference. “I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution.”

I wonder if that means that Obama thinks Roberts and Alito are better models for future Supreme Court appointments than Ginsburg and Breyer? 

Will Justice Scalia author the majority opinion in the gun rights case?

That’s the speculation.

A guy can dream. But I think Allah has it right when he says:

What’s strange is that, per O’Shea, there’s likely to be a majority on the threshold question but then all kinds of splits within the court on the subsidiary questions — and Scalia, being more of an absolutist on this issue, is unlikely to represent the majority on all or most of those subsidiary questions. Roberts himself, or Kennedy, would seem to be a better bet. Is that a hint that maybe the Court’s not going to reach those subsidiary questions at all, and will content itself with a simple ruling on the individual rights issue?

That would be consistent with the recent Roberts Court pattern of deciding cases on the narrowest grounds possible.

[posted by Justin Levine]

Another classic dissent. Read the whole thing beginning at pg. 110 of this PDF document of the court’s opinion.

But here is a starting taste, along with the ending paragraph (note how Scalia conspicuously declines to write “I respectfully dissent” as is the usual custom for Justices):

“Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war. THE CHIEF JUSTICE’s dissent, which I join, shows that (more…)

The recent Ninth Circuit opinion on “Don’t Ask, Don’t Tell” has this incorrect passage:

Second, the cases on which the Supreme Court explicitly based its decision in Lawrence are based on heightened scrutiny. As Major Witt pointed out, those cases include Griswold, Roe, and Carey. Moreover, the Court stated that Casey, a post-Bowers decision, cast its holding in Bowers into doubt. Lawrence, 539 U.S. at 573-74. Notably, the Court did not mention or apply the post-Bowers case of Romer v. Evans, 517 U.S. 620 (1996), in which the Court applied rational basis review to a law concerning homosexuals.

The Supreme Court didn’t mention Romer in Lawrence, eh?

Here is a quote from Justice Kennedy’s majority opinion in Lawrence:

The second post-Bowers case of principal relevance is Romer v. Evans, 517 U.S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships,” id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was “born of animosity toward the class of persons affected” and further that it had no rational relation to a legitimate governmental purpose. Id., at 634.

As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.

Oops.

Thanks to Ed Whelan for noticing that failing of the Ninth Circuit opinion.

By the way, in my first post on the Ninth Circuit decision, I wondered how the L.A. Times would describe the judges who decided the case. Would readers be told that all three judges are Democrat appointees?

It’s even worse than that. I have seen no evidence that the legal titans at the L.A. Times even realize this case was decided. A search for “Witt” or “Don’t Ask, Don’t Tell” in the paper’s search engine reveals no relevant articles. This despite the fact that the case was covered by the New York Times, the Seattle Times, and the Seattle Post-Intellligencer, among others. But the L.A. Times seems blissfully unaware of the case.

A panel of the Ninth Circuit today issued a decision regarding the “Don’t Ask, Don’t Tell” policy. The decision addressed an issue that sounds arcane to non-lawyers, but which is, in reality, critical: what is the level of “scrutiny” the courts will apply in examining the policy?

The reason this is important is because the level of “scrutiny” almost always determines the outcome. When courts look at governmental action under a “rational basis” type of scrutiny, it means they’re not making the government work hard to justify its actions. Any conceivable “rational basis” for the government’s action will be enough to justify it.

By contrast, when courts apply “strict scrutiny” to governmental action, they’re essentially walking up and holding a magnifying glass to the government’s decisionmaking process. If the court finds any flaw in the government’s reasoning, however slight, it will strike down the governmental policy.

This is why it’s so important to decide what level of “scrutiny” a court will give to a particular government action. When the court declares the government’s policy is subject only to “rational basis” scrutiny, the policy is likely to be upheld. When the policy is subjected to “strict scrutiny,” it is likely to be stricken down.

Rational basis = Government action/policy legal
Strict Scrutiny = Government action/policy illegal

Here, the Ninth Circuit looks at the Lawrence v. Texas case, which struck down a law against homosexual sodomy, and tries to decide what level of scrutiny the Supreme Court was applying in that case.

Usually, appellate courts simply state the test they are applying, in a clear way, so that lower courts are easily able to apply the test. This is especially true for the Supreme Court, which must provide guidance for all federal courts in the nation.

But when you’re drunk on judicial arrogance, as Justice Kennedy was in the Lawrence v. Texas decision, the virtue of clarity becomes nothing more than an annoying vexation. The need for clear guidance is petulantly waved aside, as the author of the opinion writes in grand prose. His audience is not the lower-court judges who have to implement his pronouncements. Rather, it is fawning journalists at the New York Times and other elite media outlets.

Thus do the courts find themselves in the predicament of trying to figure out what sort of “scrutiny” the Lawrence v. Texas decision was actually applying. Was it “rational basis” scrutiny? “Strict scrutiny?” Or something in between? Justice Kennedy didn’t bother to say, so the courts are on their own.

One court of appeal has directly ruled on the issue: the Eleventh Circuit, which stated that Lawrence applied “rational basis” scrutiny.

Today, the Ninth Circuit disagrees, saying that some form of heightened scrutiny — essentially a form a “intermediate scrutiny” — applies to the Don’t Ask, Don’t Tell policy.

You can read the decision here. It is the product of three Democrat-appointed judges: Ronald Gould, a Clinton appointee and the author of the opinion; Susan Graber, a Clinton appointee and the second judge in the majority; and William Canby, a Carter appointee who complained that the other two judges didn’t go far enough, and should have applied “strict scrutiny.”

(I can’t wait to read the L.A. Times article to see whether it reports that all three judges are Democrat appointees.)

Note that the plaintiff

argues that Lawrence effectively . . . establish[ed] a fundamental right to engage in adult consensual sexual acts.

Wow. That argument, if accepted, would grease the ol’ slippery slope up something fierce. To say that any consensual adult sexual act is a “fundamental right” under the Constitution has implications that go waaaaay beyond “Don’t Ask, Don’t Tell.”

The Ninth Circuit doesn’t go that far. Yet. Rather, it takes what sounds like a simple, small step: it decides that the Lawrence court wasn’t applying “rational basis” scrutiny. This is just another step down the slope — but don’t let its seeming modesty fool you. It’s a big step.

This is a big decision. It remains to be seen whether it will be recognized as such.

P.S. For what it’s worth, I think “Don’t Ask, Don’t Tell” is a ridiculous policy that should be overturned yesterday. But, like gay marriage, I don’t want to see that done through judicial sleight of hand. I want society to accept both policies. I think we’re on the way. In my view, the courts are only interfering with what is otherwise the natural evolution of people’s opinions, as they are increasingly exposed to gays — and learn, to their surprise, that they’re just people like the rest of us.

The L.A. Times has a puff-piece interview with Ron George, the Chief Justice of the California Supreme Court and the swing vote in the gay marriage decision:

[A]s he read the legal arguments, the 68-year-old moderate Republican was drawn by memory to a long ago trip he made with his European immigrant parents through the American South. There, the signs warning “No Negro” or “No colored” left “quite an indelible impression on me,” he recalled in a wide-ranging interview Friday.

“I think,” he concluded, “there are times when doing the right thing means not playing it safe.”

Oh, that quote says it all. The overwhelming sense of self-satisfaction . . . it just drips from off of your computer screen.

It could be Anthony Kennedy, basking in the glow of a reporter’s adulation and his own sense of his own courage.

What it doesn’t sound like, is a judge reading the text of a document and making a decision about what it means.

As a matter of federal constitutional law, do gay marriages performed in California have to be honored in, say, Texas? Jan Crawford Greenburg says no.

[posted by Justin Levine]

It is a lengthy [PDF] decision. Vote was 4 to 3.

The majority decision goes well beyond the narrow question of gay marriage. It also holds for the first time that sexual orientation is a “suspect classification” under the California’s Equal Protection Clause. Therefore, any law in the state that discriminates against homosexuals will be subject to “strict scrutiny” by the court - essentially treating it the same way as laws that discriminate against racial minorities. [This part of the ruling can be found in Section V-B of the decision PDF, starting on pg. 95.]

Since California has already passed numerous legislative statutes protecting homosexuals in terms of housing, workplace, etc., this broad holding probably won’t change the practical legal landscape in the state all that much. However, this ruling indicates that even if those legislative statutes were somehow repealed, the anti-discrimination rights of homosexuals would still be retained constitutionally.

As with other court decisions on this issue (both in California and many other states), the dissenting opinions make for interesting reading and are sure to inspire another round of debate over the broader issue of judicial activism (apart from the specific political debate over gay marriage).

Updated note: The City of San Francisco performed marriage ceremonies for roughly 4,000 gay/lesbian couples, before being enjoined by the courts. The state Supreme Court originally invalidated those marriages without ruling on the constitutionality of gay marriage itself. [It merely held that San Fransisco had no power to unilaterally offer gay marriage ceremonies before the courts had ruled on the question.] As Justice Kennard’s concurring opinion underscores [starting on pg. 122 of the PDF decision], those 4,000+ marriages do not suddenly become valid with this decision. Those couples will have to go through the ceremony process again, presumably resulting in a double-dip windfall for the state in marriage license fees….

Second updated note: While I have no problems with the result of this decision as a matter of social policy, it remains problematic in terms of the judicial activism debate. In addition to the dissenting opinions, you might want to pay particular attention to footnote # 52 in the majority’s decision (starting on pg. 79 of the PDF document) which underscores the problem. Ironically, the majority doesn’t seem to grasp the obvious contradictions and tensions in their reasoning that footnote 52 presents. Merely citing past court decisions is not a valid substitute for reasoning in this instance, nor is it adequate to explain the blatant double standards in social policy (beyond the personal whims and political preferences of the Justices).

[Justin Levine]

UPDATE BY PATTERICO: Comments are now enabled. I don’t know why they were turned off before.

[Guest post by DRJ]

The New York Times notes today’s U.S. Supreme Court decision upholding an Indiana law that requires voters to present photo IDs before they can vote:

“The Supreme Court upheld Indiana’s voter-identification law on Monday, declaring that a requirement to produce photo identification is not unconstitutional and that the state has a “valid interest” in improving election procedures as well as deterring fraud.

In a 6-to-3 ruling in one of the most awaited election-law cases in years, the court rejected arguments that Indiana’s law imposes unjustified burdens on people who are old, poor or members of minority groups and less likely to have driver’s licenses or other acceptable forms of identification. Because Indiana’s law is considered the strictest in the country, similar laws in the other 20 or so states that have photo-identification rules would appear to have a good chance of surviving scrutiny.

The ruling, coming just eight days before the Indiana primary and at the height of a presidential election campaign, upheld rulings by a Federal District Court and the United States Court of Appeals for the Seventh Circuit, which had thrown out challenges to the 2005 law.”

Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy, ruled that the petitioners failed to meet the heavy burden of showing the law was unconstitutional on its face, leaving open the door to a future complaint by a voter who could show his rights were violated by the law.

The opinion “brushed aside” complaints that the law benefits Republicans, noting that the law “should not be disregarded” even though it may be motivated by partisan interests. In addition, Justice Stevens’ opinion reportedly acknowledged notorious instances of voter fraud in American history.

Justices Scalia, Thomas and Alito concurred in the opinion but went even further:

“Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. concurred in the judgment of the court, but went further in rejecting the plaintiffs’ challenge. In an opinion by Justice Scalia, the three justices said, “The law should be upheld because its overall burden is minimal and justified.”

Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer dissented on the basis that the law “threatens to impose nontrivial burdens on the voting rights of tens of thousands of the state’s citizens.”

I hope Texas and other states adopt similar laws post haste.

– DRJ

[Guest post by DRJ]

In a move that is sure to provoke discussion, the Department of Justice suggests that permissible interrogation techniques could vary depending on the circumstances:

“CIA interrogation techniques otherwise prohibited by international law might be legal in the face of an impending terrorist attack, the Justice Department says in newly disclosed letters to Capitol Hill.

The letters show that the Bush administration is taking the position that it has latitude in dealing with restrictions from the Supreme Court and Congress designed to limit how far interrogators in the U.S. intelligence community can go.

Among the issues is a Geneva Conventions ban on outrages upon personal dignity, a provision the Supreme Court ruled in 2006 applies to prisoners in American captivity.

“The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation and abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act,” said a Justice Department letter dated March 6.”

This New York Times’ article originally broke the story and reported reaction, pro and con:

“Some legal experts critical of the Justice Department interpretation said the department seemed to be arguing that the prospect of thwarting a terror attack could be used to justify interrogation methods that would otherwise be illegal.

“What they are saying is that if my intent is to defend the United States rather than to humiliate you, than I have not committed an offense,” said Scott L. Silliman, who teaches national security law at Duke University.

But a senior Justice Department official strongly challenged this interpretation on Friday, saying that the purpose of the interrogation would be just one among many factors weighed in determining whether a specific procedure could be used.

“I certainly don’t want to suggest that if there’s a good purpose you can head off and humiliate and degrade someone,” said the official, speaking on the condition of anonymity because he was describing some legal judgments that remain classified.

“The fact that you are doing something for a legitimate security purpose would be relevant, but there are things that a reasonable observer would deem to be outrageous,” he said.

At the same time, the official said, “there are certainly things that can be insulting that would not raise to the level of an outrage on personal dignity.”

There are no easy answers when you are trying to balance safety and freedom.

– DRJ