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).


Venezuela’s Future — and Ours

I have long argued that about half of our political disagreements are simply cases of failing to agree about the meaning of a word. By “capitalism” libertarians mean the free enterprise of Adam Smith and Milton Friedman, while our friends on the left mean by “capitalism” the shenanigans of the United Fruit Company in Guatemala (it’s always the United Fruit Company!), the crimes of Enron, the purported misdeeds of Halliburton, etc.

.. the conversation rarely advances much beyond that, in part because of the emotional resonances of certain words, e.g. “neocon,” “corporation,” “exploitation,” etc.

.. Venezuela is what we mean by socialism.

.. those welfare states are attached to largely free economies. Sweden arguably has a more liberal trade regime than does the United States, and most of the Nordic countries had lower corporate tax rates than did the United States until the 2018 tax reform.
..  effectiveness of government and public institutions (which is one place where the Swiss, Canadians, and Germans really outperform the United States)
.. the debate about whether the top U.S. personal-income-tax rate is going to be 39 percent or 33 percent is not about taking a step toward socialism or a step away from socialism.
.. say that the problem with those countries is not socialism but a lack of democracy, political violence and instability, etc. But repression on the Venezuelan model is not extraneous to socialism — it is baked into the socialist cake.
.. While the Soviets and the Maoists had intricate five-year plans, Venezuela had essentially one big plan: Use the profits from state-run oil companies to fund a massive welfare state, and use the leverage thus gained to fortify support for Hugo Chàvez and his political party until they achieved power sufficient to move Venezuela’s assets and its people around like pawns on a chessboard.
.. Economies cannot in fact be controlled and managed in the way that socialists imagine
.. The central planners in Venezuela were arrogant and hubristic, as they always are. (As, indeed, the entire concept of central planning is.)
  • When oil revenues proved insufficient to sustain their program, they printed money;
  • when the foreign-exchange markets responded by devaluing Venezuela’s currency, they enacted controls on foreign exchange;
  • when prices rocketed out of control (Venezuela’s inflation rate is difficult to calculate, but it is estimated to have been around 18,000 percent a month in April), they enacted price controls;
  • when producers declined to produce at those artificially low prices, they seized their assets.


  • .. Venezuelans are not fools — they noticed that this wasn’t working as advertised.
  • When the critics began to say so, their newspapers and broadcast facilities were shut down;
  • when they protested individually, they were jailed or assassinated;
  • when they protested en masse, they were massacred.

When central planning fails — and it always fails — the result is almost never the relaxation of political regimentation but the redoubling of efforts to impose the plan by increasingly brutal application of force.

.. it is a fact that children are starving to death in what was, not so long ago, South America’s wealthiest country.



The secret to Germany’s happiness and success: Its values are the opposite of Silicon Valley’s

a magnetic 38-year-old named Christian Lindner, has openly expressed a desire to shake things up. In an August interview with the Economist, in which he called Germany’s economy “a prosperity hallucination,” Lindner also explained that in his country, “entrepreneurship has long been undervalued … and societies that are prepared to be more daring and have efficient capital markets have overtaken us on this.”

.. The vast majority of Germans don’t want it. For progressive and even centrist Germans, the startup-style definition of Erfolg (or “success”) is utterly incompatible with their values—which do not center on individual wealth, recognition, or even careers.

.. Germany’s cultural mores—which include a vehement defense of the country’s robust social safety net, largely credited for the relatively quick recovery from last decade’s recession—mean it is largely inoculated from the bootstrap fever that has long gripped the US.

.. In an off-script response to a heckler during a speech about startup culture’s positive attitude toward failure, Lindner memorably decried the fact that “people would rather go into public service than start something themselves.” He explained that, “when you’re successful, you end up in the sights of the social-democratic redistribution apparatus, and when you fail you’re sure to be the subject of mockery and derision.”

Lindner was correct on one point: Many Germans would rather go into public service than start a business themselves. But his theory about their motivation is all wrong. Lindner’s country-people simply don’t have the same enchantment with self-made financial success that he does.

.. Thanks in part to a general leftward tilt on economic issues after the student revolutions of 1968, most of them view the collective good, and the comparatively high taxation that accompanies it not as a sacrifice, but as a fundamental component of civilized society.

.. They are largely content with their take-home salaries, but not out of altruism. Rather, they view the role of wealth acquisition and consumerism in a fundamentally different way.

.. To Germans, caution and frugality are signifiers of great moral character. Sure, they favor high-quality consumer goods—but they deliberate on what to buy for years, and expect their possessions to last for decades

.. Moreover, for Germans, a good work-life balance does not involve unlimited massages and free meals on the corporate campus to encourage 90-hour weeks. Germans not only work 35 hours a week on average—they’re the kind of people who might decide to commute by swimming, simply because it brings them joy.

.. And a German wouldn’t be caught tot pounding down a bar or a glass of Soylent to replace a meal

.. just as Christian Lindner is obsessed with making money and driving sports cars, so have Germans been obsessed with making fun of Christian Lindner because they find his thirst for financial success so gauche.