Justice Kennedy: those retirement rumors turn out to have been correct
Justice Kennedy has announced that he will be ending his Supreme Court tenure in July.
It seems pretty obvious that Kennedy has timed his retirement in a way that will maximize the GOP hand in choosing his successor. There’s a Republican president, of course, who has pledged to nominate conservative justices from a list he submitted while still a candidate, and the Senate is in GOP hands. Whether the latter situation will remain true after November of 2018, it will be true until then, and the GOP will be in charge. Their majority is slim, however, and they need to unite on this.
In his last few votes on the SCOTUS bench, Kennedy was consistently conservative, although he’s spent much of his time on the Court as a highly influential and somewhat unpredictable swing vote. However, the timing of his retirement makes me wonder whether, at the end, he felt the need to ensure a conservative successor.
Many on the right (I include myself in that group) felt that the 2016 presidential election was especially important because it would probably have a large effect on the composition of the federal court system in general, and the Supreme Court in particular. This turns out to have been correct. And McConnell’s delay of the Garland nomination and facilitation of the Gorsuch appointment looms large, as well, as does his ending of the filibuster for SCOTUS nominations.
The Court has been instrumental in determining the course of the nation, and can either support liberty or undermine it. I believe the Kennedy retirement will support it. I certainly hope it does.
Democrats are seething, but they also see this as an opportunity to spin the news in a way that they think will ultimately benefit them. Naturally, they say it’s a catastrophe that all decent people must fight, because it imperils the very foundation of of the country and all its values, as well as the progressive agenda:
We have no choice but to organize, strategize, vote and act. Ambivalent attitudes are not a option! All civil and human rights are at stake. What side are you on? https://t.co/rCo4u70u6l
— Reverend Al Sharpton (@TheRevAl) June 27, 2018
How very cool of Justice Kennedy to pour kerosene on the current dumpster fire that is America. The Roe v Wade riots should provide fine entertainment for him in his retirement.
— Molly Knight (@molly_knight) June 27, 2018
And then there’s the classy De Niro-style approach:
Fuck. You. Justice. Kennedy.https://t.co/q6Asq83WJL
— Ian Millhiser (@imillhiser) June 27, 2018
Their anger is understandable. One of the many reasons they counted on and looked forward to a supposedly-inevitable Hillary Clinton win was the opportunity to shape the Supreme Court for decades to come. It is a bitter pill to swallow that that opportunity was lost for now, and lost to the likes of Donald Trump.
If you thought the left was unhinged, deranged and histrionic over the last couple weeks…you ain’t seen nothing yet!!
Also, why is it so many lefty bloggers are addicted to profanity? It certainly occurs on the right as well, but not nearly as frequently. While I’m no prude about language overall, I’m of the opinion if you cannot make a lucid argument without employing four letter words, you probably don’t have anything useful to say.
More of that “blue-check” civility I see.
I remember someone famous once said, “Elections have consequences.” But maybe he was talking only about when his side won.
Go back to your list Mr. President.
It’s time for more winning.
Can’t wait to see all the footage of progressives screaming at the sky, or will it be howling at the moon (sorry, that is unfair to coyotes). Will RBG be embalmed (like V.I. Lenin) so she never has to retire? Some Disney animitronics may be needed.
I’m waiting for more democrats to set themselves on fire in protest.
https://downtrend.com/71superb/liberal-lunatic-sets-himself-on-fire-to-protest-donald-trump/
OM,
Maybe not embalmed, but I image Soros, etc. have a half dozen RBG impersonators ready at hand. 🙂
I look forward to George Will’s reaction. He might inspire a nomination of mental gymnastics as an Olympic sport. All contestants to wear bow ties.
Since SCOTUS ruled in favor of the so-called Muslim Travel Ban the liberal blogs have been complaining bitterly about the shelving of Merrick during the last year of Obama’s presidency, which resulted in Gorsuch’s black robe.
They’ve also characterized Justice Kennedy’s recent opinions as his capitulation to Trump.
Ha-cha!
My mind boggles at the possible scenarios, most of them bad.
On the Republican side:
Will McCain get off his death bed to screw the country one last time?
What concession will the weak sisters, Collins and Murk, extract for their votes?
What about the retiring uber-never trumpers, Flake, Corker, …? Will they also take this opportunity to screw the base?
Will the President take a play from the Bushes and pick a nominee that concedes the battle before it is joined? Will he hang tough and keep on nominating conservatives if his nominees are not confirmed by the swamp?
On the Left:
Are there going to be major riots on the streets of DC as the Senate takes up the nomination? Assassination attempts of Senators and the conservative Supremes?
Interesting times.
Oh, MANNNNNNN! I am SO NOT bummed for them!
Skeptic,
While this is *slightly* based on gut instinct, here are my responses to your speculations….
1. The President will nominate a solid, Gorsuchesque conservative, with impeccable credentials.
2. The GOP Senators will stand solid behind him. The only real question mark, in my mind, is Flake since he has nothing to lose. McCain is borderline senile but mostly just a windbag. Worst case scenario is he can’t show up for the vote. Collins and Mukowski will fall in line. Their dissent on DeVos was mostly just for show.
I’ll add…Manchin will vote for the nominee, given his tough re-election fight.
3. As to riots and assassination attempts….sadly the likelihood of this grows with each passing day.
Oh, Happy Day !
This week just gets better and better and Hillary, how does your liver taste as you eat your guts out?
Never Trumpers and Dump Trump folks on the right who moaned and whined leading up to November of 2016, are you ready to bask in the moment?
What a heck of a week and it’s only Wednesday and I am feeling as if this fall’s elections might work out very well for the right since the polls missed the mark two years ago.
did you now that roe v wade will be overturnedin under a year?
https://www.nbcnews.com/think/opinion/justice-kennedy-s-retirement-cements-his-legacy-enabler-trump-s-ncna887106
“Collins and Murkowski will fall in line.”
I’m not so sure. Collins professes to be pro-abortion with the exception of late term abortions. Murkowski is Catholic but voted against bill to limit abortions to the first 20 weeks.
They very likely will hold out for someone who would oppose an outright federal ban on abortions, maybe tinker around the edges.
So, we may end up with a Souter. Someone who has never expressed an opinion on abortion and turns out to be a surprise in many areas.
I admit to being surprised, though on reflection I should have given more weight to Kennedy’s unpredictability.
If Kennedy does retire, Senate democrats will be faced with approving the debilitating wound of a Roberts in order to avoid the mortal wound of another Gorsuch.
I admit to being surprised, though on reflection I should have given more weight to Kennedy’s unpredictability.
If Kennedy does retire, I suspect that Senate democrats will see this as a hill to die on, faced with approving the debilitating wound of another Roberts in order to avoid the mortal wound of another Gorsuch.
Neo wrote: …the timing of his retirement makes me wonder whether, at the end, he felt the need to ensure a conservative successor.
Reading this that he wrote in yesterday’s NIFLA v. Becerra decision makes me think that is more than likely the case:
huxley & Geoffrey: that didn’t take long.
http://thehill.com/homenews/394492-feinstein-senate-should-follow-mcconnell-standard-wait-to-vote-on-supreme-court
“Sen. Dianne Feinstein (Calif.), the top Democrat on the Senate Judiciary Committee, wants the Senate to apply the “McConnell standard” and wait until after the midterm elections to vote on a Supreme Court justice who will replace Justice Anthony Kennedy.
..
“We’re now four months away from an election to determine the party that will control the Senate,” Feinstein added. “There should be no consideration of a Supreme Court nominee until the American people have a chance to weigh in.”
Feinstein’s comments echoed what many Democratic lawmakers said. Senate Minority Leader Charles Schumer (D-N.Y.) said it would be the “height of hypocrisy” for Republicans to vote on a nominee to replace Kennedy and urged McConnell to have the proceedings take place in 2019. ”
GOP can’t ever reach the HEIGHT of hypocrisy; the Dems have set too high a bar.
If McConnell doesn’t just laugh in their faces, he ought to be impeached.
Ann Says:
June 27th, 2018 at 5:53 pm
[quoting Kennedy’s decision]
…Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”
* * *
I think he may have noticed the sorry consequences of some of his earlier well-meant but ultimately disastrous votes.
Echoing David French on the NIFLA case, which I quoted in more detail on that thread:
“If you’ve followed Justice Kennedy’s career, you’ll note a recurring theme: He hates bullies and loathes intolerance. Much of his jurisprudence on gay rights was plainly motivated by his desire to protect a vulnerable population from what he perceived to be a discriminatory and bigoted majority. And now he’s protecting different vulnerable populations from different bullies.
The results are clear. Government activists, if you try to force a man to violate his conscience to advance your ideology, the Supreme Court has a message for you: You’re going to lose.”
AesopFan,
I was thinking the same thing. He also may not be so impressed by Kagan and Sotomeyer intellectwise.
Thanks Ann and Aesop for the nuggets of insight.
If I were to guess in my ignorance, that since Kennedy spent time of both sides of the ideological spectrum, he might have found both sides justifiable in a general sense. The fact that he jumped ship now, at an opportune time for Trump and the Senate, suggests not. He either sees another conservative justice as necessary, or the prospect of another left winger as terrible.
Maybe he foresees a battle royale that will likely produce another moderate on the bench?
The uproar over Kennedy will easily top the hysteria about “the CHIILDREEEN!!”
It’s already beginning:
Predictably : “Senate Democrats Call On Mitch McConnell to Postpone Supreme Court Vote Until After Midterms”
“Trump will push for swift confirmation of a new Supreme Court justice — before the midterms”
Ackler types:
“2. The GOP Senators will stand solid behind him.”
From your keyboard to God’s monitor. I now curse turncoats like Alabama Sen. Richard Shelby, the execrable Jeff Flake, Rinos like Colorado Sen Cory Gardner who preened for the media that they preferred a Democrat to Roy Moore.
“CBS News’ Chief White House correspondent Major Garrett points out that Kennedy’s retirement is a campaign gift to Republicans and the president. The second Trump Supreme Court nominee will be galvanizing call to Republicans to support Republicans on the ballot in Senate and House races in the midterms.”
‘Course it will also galvanize the Dems.
I am galvanized.
Well, at least we’ll get a break from the overwrought wailing about illegals at the border. Unfortunately now we’ll get inundated with insane commentary about the Supreme Court.
It just goes from one thing to the next over and over and over.
Sigh.
“It just goes from one thing to the next over and over and over.”
Many people have suggested that President Trump really is holding back on authorizing the disclosure of all DOJ and FBI redacted and with-held documents so that they can be released at an opportune time to nuke-bomb the Democrats.
If the Left gives him the opposition on SCOTUS that we anticipate, the closer he can run them to the brink before mid-term elections, the better.
http://www.powerlineblog.com/archives/2018/06/breaking-chief-justice-anthony-kennedy-to-retire.php
Comments:
“Schumer is saying Republicans should apply the same rule they used in 2016 by not having a vote during an election. What Schumer forgets is that the Republicans were following Harry Reid’s rule, which is that you only need 51 votes to approve or stop a nomination. D’s got nobody to blame but themselves..and Harry Reid.”
“Plus, there’s a significant difference between a Presidential election and a mid-term election. The idea that a President who is leaving office in six months shouldn’t nominate a Supreme Court Justice is controversial but defensible, but the Schumer standard means that there would only be about a one-year window every two years in which a nomination could be made, vetted, then voted upon. That’s ridiculous. If Democrats held the Senate majority, like the Republicans did in the final year of Obama, they would be welcome to block Trump’s nominee until after the election. But in this case they do not, so the nomination and confirmation should proceed.”
What McConnell said:
https://www.nbcnews.com/politics/congress/dems-mcconnell-vote-court-nominee-after-midterms-stop-hypocrisy-n887121
“McConnell was unmoved by the protestations, saying things are different. ..
“There’s no presidential election this year,” McConnell told reporters “
Schadenfreude continues:
http://www.powerlineblog.com/archives/2018/06/the-flake-factor.php
Commenter:
“Brad Bettin Sr. “Reid goes nuclear — now bring on the liberal activist judges! Now that they nuked the judicial filibuster, Democrats must exercise their new power and build a progressive bench. The rule change upends the old norms that governed the legislative and executive branch’s roles in seating judges. That means Obama and Dems can fill every vacancy on the federal bench before their control of the Senate, or his presidency, comes to an end.”
Salon, November 21, 2013 8:01pm
Thank you Harry Reid”
Note, per above, that bothcontrol of the Senate and then control of the presidency came to an end.
But the Dems didn’t learn anything from either event.
I really hope he selects a woman to be the nominee. The left is going to go off on whoever it is and that will really look worse if it’s a woman.
Of course they have had lots of practice the last couple weeks (Sanders, Nielsen, Bondi, etc).
@AesopFan –
Also, Kagan was confirmed in 2010, a midterm election year, so f**k that noise.
I am linking to this comment on the “Uncivil War” post, for what should be obvious reasons. As go the courts, so goes the country.
http://www.powerlineblog.com/archives/2018/06/trump-will-stick-to-his-list.php
“A 60-vote threshold is hardly “traditional.” Justice Clarence Thomas was confirmed 52-48, and that was in the bygone era of 1991.
UPDATE: On that last point, Guy Benson lays out the history. Guy supplies chapter and verse..”
https://townhall.com/tipsheet/guybenson/2017/04/04/unprecedented-make-senate-democrats-pay-for-their-toxic-partisanship-n2308081
Boy, does he ever! You all know most of the story, even many of the details, so I will just quote the final grafs:
“Which brings us to today. In laying the groundwork to launch the first-ever partisan SCOTUS filibuster (the only previous SCOTUS filibuster was against the elevation of a sitting justice, was nearly evenly bipartisan, and was connected to an ethics scandal), Democrats have whined incessantly about Republicans’ refusal to consider the nomination of Merrick Garland to the Supreme Court in the final year of his term. As they laughably claim victimhood on this score, it should be noted that (a) Obama had already appointed two liberals to the Court by that point, neither of whom faced any serious resistance from the GOP, and (b) there was ample precedent for the Senate leaving an election-year vacancy open. Indeed, that exact course of action had been advocated by Senators Joe Biden and Chuck Schumer in 1992 and 2007, respectively, when — you guessed it — Republican presidents were in office. By ignoring Garland, Mitch McConnell and company were simultaneously following the Biden Standard and exacting some modicum of revenge for Democrats’ 2013 establishment of the poisonous, nuclear Reid Rule. When that latter precedent prevented Democrats from obstructing some of President Trump’s cabinet members in early 2017, a handful of Senate Democrats admitted that they had already come to regret going along with the Reid Rule (just as President Obama conveniently “regretted” an attempted filibuster against Justice Alito once the shoe was on the other foot). And now — wouldn’t you know it? — they’ve turned around to embrace another unprecedented escalation.
Republicans are not entirely blameless in these wars, as the GOP has inflamed tensions at various stages along the way, often through various forms of retaliation. But the broad-strokes record is clear: The Democratic Party has been exclusively and repeatedly responsible for the biggest provocations, over the span of decades. They have insisted upon an ever-changing set of standards under which they get their way, whether they are in or out of power. They have sought to impose special restrictions on Republicans, shamelessly changing the rules of the game when the roles are reversed. Modeling better behavior has not succeeded in shaming them. Targeted retaliation has not chastened them. They have increasingly approached these battles as zero-sum blood feuds, whereas Republicans have naively believed that honoring Senate traditions, with some turnabout sprinkled in, would dissuade their opponents from future provocations. The Garland episode was an important turning point, when the GOP finally force-fed Democrats a taste of their own medicine; and boy, did they hate it. And thus, a zero-sum fight, waged lopsidedly by one party for years, was at last fully engaged. With their enraged base seething with blind fury, Democrats are now on the precipice of one final escalation. Democrats began and endlessly advanced this partisan war, but the time has come for Republicans to end it.
Confirm Neil Gorsuch with a simple majority. Confirm President Trump’s next Supreme Court selection or selections with simple majorities. Move the Court to the right. And do what it takes to stack as many lower courts as possible with conservative judges. That was the purpose of the 2013 Reid Rule power grab, and it worked: When President Obama entered office, just one of the nation’s 13 circuit courts of appeals had a Democratic majority. When he left office, that number had swelled to nine. The era of Senate comity on such matters is long gone. We’ve seen the lengths to which Democrats will go to gain an advantage in these high-stakes ideological fights, and that will never change. Republicans are left with no choice but to embrace the Democrats’ brand of hardball; anything less would amount to unilateral disarmament, which — given the history recapitulated above — is no longer acceptable. Whether through Harry Reid’s nuclear option or other procedural means, the GOP must get the job done. After years of sustaining blow after blow, it’s time for Republicans to join the Democrat-instigated street fight and start landing some roundhouses of their own.”
I don’t read Hot Air much anymore, but strolled around over there after reading the Town Hall oldie-but-goodie from Guy Benson.
They have a couple of good posts up on the Supreme Court decisions and the upcoming nomination.
https://hotair.com/archives/2018/06/27/supreme-court-term-finale-targeting-compelled-speech-govt-archipelago/
“And thus we come to Janus and the reconsideration of Abood. Seen in this context, the majority on the court has woven a clear thicket against the imposition of speech and limits on religious expression by government on individuals, whether or not it it gets imposed directly — as in NIFLA and Masterpiece Cakeshop — or indirectly, as in Janus and public-employee unions that ally themselves with a political party. To use a different metaphor, the combined effects of these three decisions create a sledgehammer against imposed speech that should — and likely will — stymie any further attempts to recreate them.
That’s a big win for free speech, religious expression, and freedom of assembly. To the extent that others lose in this exchange, it is only to the extent that they have illegitimately profited off of infringements on basic rights in the past. Stare decisis cannot be used to continue injustices and infringements, a point Alito explicitly makes in his ruling: (in Janus)…
Rather than a radical outcome, it’s one that has been long overdue.
That’s not the only message sent by the court this term, either. As I wrote yesterday in The Week, the Supreme Court has all but shut down a new form of judicial activism that would have extended Article III authority far into the realm of electoral politics: (redistricting)
…
Finally, let’s recognize that this series of 5-4 decisions would have gone the opposite direction had Merrick Garland taken Antonin Scalia’s place. Donald Trump can take credit for the excellent appointment of Neil Gorsuch to fill that seat, but Mitch McConnell was the man responsible for keeping it open in the first place.”
https://hotair.com/archives/2018/06/27/schumer-hadnt-insisted-filibustering-gorsuch-hed-much-better-position-now/
“Whoa. In 2013, Reid asked if he was worried GOP could change filibuster on #SCOTUS. His response: “Let ’em do it” –“
One of these days I’m going to quote myself saying something to the effect that if we get one good S.C. pick out of the Carnival Barker, then my reluctant vote will have been justified.
Well, no I won’t; since 50% of you were saying exactly the same thing. I was way too pessimistic.
If there is a way to be happily wrong … that was the way.
And no matter what shit storms may arise yet, no matter what existential crises may confront us, I will know that at least I did not piss away what was clearly the only chance – even at a toss up – I had as a voter to try and keep something of the republic, the rule of law, and our heritage of economic and political liberties.
Yes, “happy day”: in the gravest, and most gratefully reflective manner in which that phrase can be uttered.
First comment on this post asks “Also, why is it so many lefty bloggers are addicted to profanity?”
It’s an odd thing. I guess it goes back to the ’60s, when both hippies and political radicals began to use various once-forbidden words for the sheer defiance of it. But it wasn’t usually in fury like it so often is now. I noticed that really taking off after roughly 2000. Women seem especially taken with it, as though it’s a form of violence that’s open to them. As though to signify that they are truly, truly angry and serious. I’m Facebook friends with a few left-wing women and they’re always posting tweets and such that are full of sentences like “For f***ing f***’s sake, how f***ing long are we going to tolerate these f***ing people?” I’m not exaggerating.
The impression it leaves with me is not “Wow, this person is truly impassioned” but “Wow, this person is truly on the brink.”
Well…..My lefty inlaws are reposting stuff on social media at a frantic pace. That makes me think that the war is lost for them…at least I hope so. Not sure if they will ever come to terms with things or if they will continue to emote to distraction. I don’t care. All the socialism and Obama love promoted by them is proven wrong again.
I was a reluctant voter for Trump who has been pleasantly surprised at how well he has done. #MAGA!!
I don’t think the Democrat True Believers could have become more galvanized than they already were. This will be The Cause of the Week, and like the old Billboard Top 100 lists, will probably remain atop the list for many weeks now, but I don’t see that it brings in new votes. The previous list of possible nominees, which Trump has said he will stick with, does not have any relatives or business partners or fringe players to alarm the Independents. This may indeed be an electoral gift to the Republicans. May. Things that are probably going to happen are not fated to happen, and elections take twists and turns.
I am concerned about Republican defections. It pays to remember that even the politicians we like best are (gasp) politicians, and never more self-serving than when they claim to be standing on principle. On this spin of the wheel it is RINOs, but the next time it could be people we trusted more.
If the possible defectors hold, it will be good to be grateful to them. They often come from purple places and may be endangering their own electoral chances by siding with Trump in any way. Had they not run as centrists, we might have had Democrats in those slots now.
“If the possible defectors hold, it will be good to be grateful to them. They often come from purple places and may be endangering their own electoral chances by siding with Trump in any way. Had they not run as centrists, we might have had Democrats in those slots now.” — AVI
* * *
This is a generous, observation. They can’t vote for anything if they don’t get elected, and we are always grateful for purple Dems who cross the aisle, so need to be understanding of purple Reps as well.
It is certainly better to have a friend who sides with you only 80% of the time, than an enemy who sides with you zero percent.
It’s the RINOs whose “siding number” goes down to 20% or so that are the bigger concern as to their real ideology — but that’s still more than zero.
Unfortunately, their x% of conservative votes, no matter the magnitude of x, seems to fall on the more trivial matters, and the non-conservative ones are often defections on the essential questions.
May they hold steady on the courts, indeed.
Assuming a new justice in the Gorsuch mold, my concern is: Will Roberts become the new Kennedy (remember Obamacare?)? If so, we are back to square one for the time being.
T – I agree. The Obamacare case proved – not suggested, but proved – that when push comes to shove (making truly momentous decisions that would cause, shall we say, an uproar), Roberts is a coward.
It’s actually a little different from Kennedy, and maybe on the level of character even less attractive, because Kennedy at least seemed to believe the bullsh*t he often put forth. Roberts is smarter than Kennedy (I assert it without argument – just read their opinions), and I’m quite sure that in his heart of hearts he thinks, e.g., Roe is a travesty.
But I will say it here for future reference: there is not a snowball’s chance in hell that Roberts would ever overturn Roe. Not going to happen. And likewise for any other progressive shibboleth, legislative or judicial, so long as it’s already in place.
That being said, he’s quite good more often than not, and a lot more consistently “conservative” than Kennedy. It’s hard to explain, but he often finds a way to do the old Kennedy tap-dance while somehow coming down on the right side. Whether that will remain the case going forward is hard to say, but there’s no reason to be too pessimistic about it. All things considered, as a justice, Roberts has been a hell of a lot better than Kennedy (notwithstanding Kennedy’s absolutely correct, scathing masterpiece of a dissent in the Obamacare decision).
As of now, I think Amy Barrett is clearly the best choice, with Mike Lee being equally acceptable. I doubt she would survive the confirmation hearings – the golden gals from Maine and Alaska and perhaps a Flake or two would see to that – but Trump has never been one to back down from a brawl.
He should go all in. Barrett, baby. Let’s do this. Gird your loins.
Kolnai,
We can only hope that a Gorsuch-like appointment tips the scales enough to make Roberts even more consistently right of center.
Although focusing only on West Virginia, here is an an interesting perspective on how several red-state Dems might counteract the Collins-Murkowski-McCain-Flake quadrafecta.
http://donsurber.blogspot.com/2018/06/supreme-court-vacancy-could-re-elect.html
(Also great to hear from you!)
It’s very rare when the Supremes outright overrule a decision; what they normally do is undercut it until it is neutered, then they may or may not overrule it explicitly. What I expect to happen is that Planned Parenthood v. Casey will actually go first, which will bring back the Roe v. Wade‘s allowance of state restriction on abortion, particularly in the third trimester. It’s not likely that Roe v. Wade will ever be explicitly overruled, just nibbled away at.
Kolnai — At first I agreed with you about Justice Roberts’ vote on Obamacare. But the more I have thought about it, the more I agree with him that it is a tax — it is a tax on the young and healthy to pay for the healthcare of the old and sick. I think he could have been more explicit, and I think he might still have found a way to hold it unconstitutional (commerce clause, individual mandate, etc.) but I think he was factually correct.
Richard Saunders – While it’s a knotty question, and the framers of the law *could* have written the mandate as a tax, they simply did not.
Over and over again, as the dissenters pointed out, the law speaks of “requiring” the purchase of insurance and a “penalty” for those who don’t. A tax is not a regulatory penalty. So in practice what Roberts did is rewrite a statute to justify the implementation of mandates under the Commerce Clause.
You can argue that the mandate serves, functionally, as a tax, and that it was written as a penalty simply to allow its proponents to not have to say the words, “Our law has a new tax,” but the fact remains that it categorically was not written as a tax. It is a penalty, it was framed as a penalty, and for the purposes of statutory construction that’s all that matters.
So, while you justifiably highlight the fact that, in a deeper sense than the plain meaning of the law, Roberts may have been right, what matters is the effect on constitutional law – namely, that Roberts enshrined a principle of rewriting laws from the bench in order that they pass constitutional muster.
kolnai Says:
June 28th, 2018 at 7:21 pm
…
So, while you justifiably highlight the fact that, in a deeper sense than the plain meaning of the law, Roberts may have been right, what matters is the effect on constitutional law – namely, that Roberts enshrined a principle of rewriting laws from the bench in order that they pass constitutional muster.
* * *
This.
Of course, that’s what most of the leftist justices do all the time, and Kennedy as well, so maybe Roberts just thought it was his turn.
I hope they go back to interpreting the Constitution and every single law exactly as it is written.
Roberts gets the Travel Order correct, although the dissenters get it wrong for the same reasons some of us think Roberts got Obamacare wrong.
http://thefederalist.com/2018/06/27/the-four-dissenting-votes-in-the-travel-ban-ruling-are-a-dangerous-sign/
“here is a difference between thinking something is a bad idea (and you could easily argue that the travel ban is a bad idea) and claiming it has no rational basis and is therefore void. The plaintiffs, the district court, the Ninth Circuit, and Sotomayor are committing a cardinal sin of jurisprudence: coming up with the answer they wish was true and working backward to invent a legal justification for it.
But even if they are correct that the travel ban order is terrible, that does not mean it is illegal or unconstitutional. We in this country are governed by laws, not by a judge’s personal morals. It may be at times that the laws we have do not exactly match our idea of right and wrong, but the answer in that case is to change the law, not to pretend it doesn’t say what it very clearly says.”
* *
I don’t know if Roberts wanted Obamacare to be “true” and invented a way to make it so or if some other odd reasoning was at work in his brain, but if it looks like a duck…
Schadenfreude – breakfast of champions.
https://www.nytimes.com/2018/04/28/opinion/sunday/justice-kennedy-supreme-court-open-letter.html
“You have sent mixed signals about your intentions, but that hasn’t stopped Republicans in Congress from referring to your departure as a done deal. (Of course, they said the same thing last year.) They smell blood — if they can install another rock-ribbed conservative like Neil Gorsuch, the court will have a locked-in right-wing majority for the rest of most of our lifetimes. They won’t even have to steal a seat to do it.
…
Justice Gorsuch replaced Antonin Scalia, a move that didn’t disrupt the balance of the court. Replacing you with a hard-line conservative, in contrast, would have enormous consequences for the nation’s laws and Constitution for decades to come.
[did they really think that would persuade a justice who thinks of himself as a conservative, although maybe a bit more “compassionate” than others]
…
Do you want to give your seat to a president whose campaign and administration are under criminal investigation, whose closest aides have been indicted or have pleaded guilty to federal crimes? A president with so little regard for or understanding of the role of the judiciary, the separation of powers and the rule of law?
[hint: they aren’t talking about Hillary here, although the shoe certainly fits]
You know as well as anyone that the Supreme Court’s authority depends on public confidence. When that fails, the consequences can be dire.
[like the confidence hasn’t been in free-fall for decades over the overtly political decisions of some of the justices]
…
This is where you come in, Justice Kennedy. You’re a conservative from a time when conservatism was a more or less coherent political philosophy, not a tribal identity. You’re a believer in free markets and individual liberty, and also in human rights and equal justice. A defender of the rule of law, of civility and decorum — those time-honored values now desecrated daily by the current inhabitant of the Oval Office.
[hint: they aren’t talking about Bill Clinton or Barack Obama, although the shoes fit both]
In short, you’re as close to a centrist as anyone on the current court, and so you, more than anyone, are in a position to protect its good standing. The American people are desperate for someone who is not polarizing, and your continued service would be an encouraging sign to them that the court can still operate outside politics.”
[interpretation: someone who will fight back against our polarizing, and the people know perfectly well that even Kennedy does not operate outside politics]
Yada yada yada along the same smarmy lines, damning with oily praise. If I were Kennedy, I would have retired just because of this letter.
Vox gives the Dems some good advice; let’s hope they don’t take it.
https://www.vox.com/policy-and-politics/2018/6/26/17506054/anthony-kennedy-retirement-supreme-court
“This Supreme Court vacancy will give Donald Trump the power to shift jurisprudence on a range of critical issues. It could wind up being the most important part of his legacy.”
But it didn’t have to be this way. Liberals looking forward with horror have one lesson to learn from the jurisprudence this will unleash: Every election matters.
…
“Neither party gave voters an affirmative reason to show up at the polls,” [in 2014] complained the New York Times. Some commentators — like, well, me — argued that there was no such thing as a dull election when both the Senate and the Supreme Court were so closely divided, but such arguments fell on deaf ears.
The absence of enthusiasm favored Republicans: They picked up nine Senate seats, ripping control of the chamber away from the Democrats for the first time since 2006. And did it matter? It did. 466 days later, Antonin Scalia unexpectedly died, opening a vacancy that could’ve swung the Supreme Court for a generation.
…
n April, McConnell was asked, by Kentucky Today, to name his most important achievement in public life. “The decision I made not to fill the Supreme Court vacancy when Justice Scalia died was the most consequential decision I’ve made in my entire public career,” he said.
McConnell was right. Many of these were 5-4 rulings, which is to say they’re not triumphs of legal reasoning, they’re triumphs of political power. These cases were decided not during oral arguments but during the 2014 midterms. The lesson of today’s Court rulings isn’t that McConnell is a jerk. It’s that midterm elections matter.
Anthony Kennedy’s retirement means Republicans will be able to shore up their 5-4 majority with a more consistent conservative than Kennedy. But it’s possible the coming years could offer them more than that: Ruth Bader Ginsburg is 85. Stephen Breyer is 79. It’s not impossible to imagine a liberal seat opening before the end of Trump’s term.
We are 133 days away from the 2018 election. The path to a Senate majority for Democrats is narrow, but given that they only need to pick up two seats, it’s certainly plausible. If Democrats take back the Senate, they have the opportunity to wield the same power Mitch McConnell did over any future Supreme Court vacancies — but only if Democrats learn the lesson of 2014 and turn out to vote.”
@ “kolnai Says:
June 28th, 2018 at 2:11 pm …”
Excellent comment.