The Discerning Texan
-- Edmund Burke
Monday, June 30, 2008
"Our Worst Justice"
Read the whole thing, he could not be more spot on.
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!"
In a 2005 interview, Kennedy said of the court, "You know, in any given year, we may make more important decisions than the legislative branch does -- precluding foreign affairs, perhaps." (He was wise to include the "perhaps," in light of the recent Guantanamo Bay decision.) He went on to note how judges need "an understanding that you have an opportunity to shape the destiny of the country."
So much for the country's destiny being shaped by a free people acting through their representative institutions, within certain constraints it enshrines in the Constitution. That wouldn't allow nearly enough room for what Jeffrey Rosen, in a devastating profile of the justice in The New Republic, calls Kennedy's "self-dramatizing moralism."On any politically charged case, we are supposed to wait with bated breath while the famously agonizing Kennedy decides which side he is going to bless with his coveted fifth vote ...
Meanwhile, (in a defense of Kennedy a year ago) former Kennedy clerk Michael C. Dorf lays out the objections that Rosen and others among Justice Kennedy's critics (rightfully, in my opinion) have against him:
1) Kennedy is the most activist of the current Justices in the sense that he votes to hold laws unconstitutional more often than any other;I think it goes further than that. It is an example of absolute power corrupting absolutely: Kennedy's megalomaniacal power-trip as "Mr. Swing Vote" has clearly gone to his head in a way that O'Connor's decisions ever even approached; Kennedy's complete disregard for the Constitution (no matter which way his judicial whimsicalness might fall on any given day) is as dangerous to this country as is an awful Presidency--at least awful Presidents can be removed from office by the people every 4 years.
2) Kennedy's writing style is florid;
3) Kennedy's conception of human psychology owes more to great works of literature than to interactions with real people;
4) Kennedy professes to care about dialogue but really only wants others, including schoolchildren, to hear what he has to say and agree;
5) Kennedy merely poses as an open-minded agonizer so that lawyers and his colleagues will come to him as supplicants;
6) Kennedy's form of moderation is worse than Justice O'Connor's was because she wrote split-the-difference opinions that had no broad effect, whereas Kennedy writes in broad abstract terms.
On the other hand, an appalling jurist like Justice Kennedy is in that seat for as long as he wants to be--and he clearly is enjoying every Washington cocktail party-laden second of being "The Decider".
As for the Constitutional role he was appointed to fulfill, Kennedy clearly sees himself above all that "Founding Fathers" nonsense. And Kennedy's name is on some of the worst Court decisions in my lifetime, decisions which I believe will someday go down in the annals of Judicial infamy: Plessy v. Ferguson's got nothing on Boumediene when it comes to judicial depravity. And Kennedy's name will be on that abomination for all time to come.
It is difficult to imagine any Justice being less respectful of the law of the land, and of the Constitution that is our social contract.
I will close with a final broadside, courtesy of Ann Coulter, from her column "American Idle":
The detainees are not held because they are guilty; they're held to prevent them from returning to the battlefield against the U.S. Since being released, at least 30 Guantanamo detainees have returned to the battlefield, despite their promise to try not to kill any more Americans. I guess you can't trust anybody these days.
The treason party says the detainees are mostly charity workers who happened to be distributing cheese to the poor in Afghanistan when the war broke out, and it was their bad luck to be caught near the fighting.
They consider it self-evident that enemy combatants should have access to the same U.S. courts that recently acquitted R. Kelly of statutory rape despite the existence of a videotape. Good plan, liberals.
The New York Times article on the decision in Boumediene notes that some people "have asserted that those held at Guantanamo have fewer rights than people accused of crimes under American civilian and military law."
In the universal language of children: Duh.
The logical result of Boumediene is for the U.S. military to exert itself a little less trying to take enemy combatants alive. The military also might consider not sending the little darlings to the Guantanamo Spa and Resort.
No question there will be an alternative now,; and my guess is that future detainees' fate will not be nearly so "comfy" as has been the treatment which the current detainees have been getting at Gitmo.
As usual: whenever the the law of unintended consequences kicks in, the resulting fallout will likely be much worse that was the original "sin" that decisions like Boumediene were intended to correct.
And there will be no one to blame but King Anthony.