Senators such as Donnelly, Heitkamp and Manchin need to argue to those who are ambivalent about abortion, or even against it, that right-wing judges would sanction a plutocratic government with little capacity to defend their interests.
.. “The Supreme Court, in case after case, is freely imposing its own view of sound public policy — not constitutional law, but public policy,” Biden told me at the time. “What is at issue here is a question of power, whether power will be exercised by an insulated judiciary or by the elected representatives of the people.”
.. Biden acknowledged that the phrase “judicial activism” has “often been used by conservatives to criticize liberal judges.” But “the shoe is plainly on the other foot: It is now conservative judges who are supplanting the judgment of the people’s representatives and substituting their own.”
“The existing Court’s assault on voting rights, collective bargaining and religious liberty is awful enough — just imagine how bad working people will have it if another right-wing justice joins the Court.” He warned of the court “taking a vicious, anti-worker, anti-women, anti-LGBT, anti-civil rights turn.”
.. The future of abortion rights is central to the coming battle. But so are civil rights, corporate power and our democratic capacity to correct social injustices. Conservatives should not be allowed to distract attention from the aspects of their agenda that would horrify even many who voted for Donald Trump.
Anthony Kennedy’s Imperial Legacy
In the American republic’s slow transformation into a judicial-executive dyarchy, with a vestigial legislature that lets the major controversies get settled by imperial presidents and jurists, Anthony Kennedy occupied a particularly important role.
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. As the court’s swing vote, though, he instead consolidated the judiciary’s imperial role — taking the expansive powers claimed by judicial liberals in the Warren era and turning them to his own purposes, his own vision of the common good.
He did this without a particularly coherent constitutional theory
.. showing neither humility nor rigor in his ultimate decisions
.. overruling state and federal law more frequently than any justice to his right or left, pontificating in sweeping and self-righteous and faux-poetic prose
.. seeking to establish the court as the decisive and unifying authority for a sprawling and divided country.
.. Without being a completely consistent libertarian, he was a general champion of freedom
.. Kennedy was the modern court’s most “neoliberal” justice, embracing corporate freedom and sexual freedom as a kind of unity, attacking restraints on campaign spending and mandates to buy health insurance in the same spirit as restrictions on pornography or flag-burning or abortion.
.. I admired Scalia’s originalism precisely because it establishes plausible (if, of course, debatable) limits on judicial activism
.. Even when he was right on the merits of an issue, he was still too aggrandizing, too eager to impose his own judgment, too quick to short-circuit legislative debates.
.. what he delivered was, in some sense, what both the political class and the public increasingly desire from their government: not republican deliberation but quasi-monarchical action.
.. judicial activism increasingly fills the empty space created by legislative sclerosis and political cowardice
.. unwillingness of elected representatives to act on controversial issues.
.. tried to act as the “good emperor” that our decadent system and polarized country may require — by balancing his own liberal rulings on abortion and same-sex marriage, for instance, with subsequent decisions that allowed some space for pro-life activism and protected some religious liberties against the anti-clericalism of the left.
.. even if you accept that our country increasingly craves a kind of stabilizing central power, Kennedy’s freedom-first synthesis did not succeed in supplying it.
.. 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, that community and solidarity need to have their day, even if it comes at the expense of certain liberties and transcendentalist idylls.
.. John Roberts, Kennedy’s likely successor as our First Archon, is better suited than his predecessor to the imperial task. We know that Roberts is more temperamentally cautious than Kennedy
.. he’s both more friendly to religious conservatism (witness his Obergefell vote) and more willing to
let social-democratic policymaking stand (witness his vote to save Obamacare).
Kennedy Retires — It’s On!
Whoever accepts President Trump’s call for the nomination will be one of the bravest men or women in public life, because he or she is going to be attacked with unrelenting fury from the Left.
.. For a lot of white evangelicals, this moment was worth every migrant child forever traumatized, every refugee family denied safety, every sexual assault victim betrayed, every white nationalist emboldened, every lie told. These are the ends that justified the means.
.. Bears repeating: Had Clinton won, she’d likely have replaced Scalia, Kennedy, and eventually Ginsburg (85) and Breyer (79). -That’d make six relatively young liberal justices and a lasting majority. -Now, it’ll be five conservatives, all 70 and under.
.. (Chuck Schumer quite understandably called on McConnell to follow the same policy he did to deny Merrick Garland a hearing in an election year. McConnell, a hardballer if ever there was one, quite understandably didn’t take this seriously.)
.. If Trump is re-elected in 2020, and he still has a Republican Senate, there is a decent chance that he could leave office with a 7-2 conservative majority.
.. First, the hearings could well be a catalyst for real violence
.. Let’s revisit this January piece from National Review’s Michael Brendan Dougherty:
I’ve started to think that Supreme Court Justice Anthony Kennedy may be the one man preventing the United States from political breakdown.
.. both sides have reason to pity themselves as the losers of the [political] system. Partisan Democrats, with some justification, feel that the constitutional system favors dirt (geography), so it rewards Republicans with too many senators and even electoral votes than they would otherwise win. Many partisan Republicans also feel that their votes go for naught, and that elites in the media, donor class, and social scene of Washington, D.C., constantly make Republicans under-deliver on their promises.
.. Kennedy deals out victories and defeats to each side — giving slightly more defeats to social conservatives. In effect, he constrains what each side can do to the other. His mercurial jurisprudence replicates and even gives the savor of legitimacy to a closely divided country.
.. So I’ve started to worry that if the Court soon consolidates to the left or the right, partisans on the losing end of that bargain will swiftly lose faith in democracy itself. A non-swinging Supreme Court would give the impression of super-charging the ability of one party to act, and restraining its competitor. A consolidated Supreme Court could open up whole new fields of legislation for one side to act against the other. At that point, what would happen?
.. Overturning Roe would only mean that regulating abortion returns to the states. If you live in a socially liberal state now, you don’t have anything to worry about. That’s not going to make you happy, but it’s not Armageddon. And there is no realistic chance that Obergefell will be overturned. But even if it were, again, that only means that the gay marriage question devolves to the states. Gay marriage is overwhelmingly popular. There might be a handful of Southern states (plus Utah) that might vote against it, in a popular referendum. But even they would fall eventually. Same-sex marriage isn’t an issue for younger voters, who support it by a wide margin.
.. Kennedy retiring is where the Roy Moore own goal really, really hurts. We now only have 51 votes, but two of those are Murkowski and Susan Collins, who will likely be reluctant to support a 5th pro-life justice. Mitch will have to put the screws on to get to 50.
.. However, had Hillary Clinton won, conservatives would be in the same miserable position today as liberals are.
It is not at all healthy for the republic that the Supreme Court matters so much. But we are where we are.
We’re About to Find Out How Bad It Will Get Without Justice Kennedy
Among other things, Justice Kennedy was the bulwark against legal assaults against abortion, perhaps the one issue, more than any other, where the court’s influence and public attention so clearly intersect.
.. With Justice Kennedy on the bench, the thinking among liberals went, how bad could things get? Now that he’s gone, we’re about to find out.
.. After he had appeared to invite a challenge to partisan gerrymandering way back in 2004, a case finally arrived in the just-concluded term, with the social science measures of partisanship he had asked for. But Justice Kennedy ducked without even writing to explain why as the court decided the case on narrow technical grounds. And though his principal left-leaning legacy is his expansion of gay rights, especially marriage equality, he settled for another narrow resolution this month, writing the majority opinion that favored the religious objections of a Colorado baker over a gay couple’s right to be treated like anyone else when they walk into a store and order a wedding cake.
.. To a degree, this step-by-step development of law is Chief Justice John Roberts’s approach, too.
.. Consider, for example, that Justice Neil Gorsuch has already made it clear that he’d like to revisit big and seemingly settled questions. This week, he joined Justice Clarence Thomas in questioning whether the Voting Rights Act applies to electoral redistricting at all.
.. “The degree of civilization in a society can be judged by entering its prisons,” he wrote, quoting Dostoyevsky.
.. he agreed with his four liberal colleagues in 2016 that Texas couldn’t close down clinics by claiming to protect women’s health, since the facts contradicted that claim. None of the conservatives on the court have given the slightest sign of stepping into those shoes. It’s just a matter of how far and fast they tack in the opposite direction.