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.
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).