I think that Ilya Shapiro says what needed to be said about Justice Anthony Kennedy on the occasion of the announcement of his retirement in his op-ed in the Washington Post:
Even if you generally liked how Justice Anthony M. Kennedy voted, you had to scratch your head at how he got there. I should know; during his time on the bench, he agreed with the Cato Institute more than any other justice did. Cato was the only organization in the country, for example, to file briefs supporting the side that got Kennedy’s vote in virtually all the big cases: District of Columbia v. Heller ( Second Amendment), Citizens United vs. Federal Election Commission ( campaign finance), Shelby County v. Holder ( voting rights), United States v. Windsor (Defense of Marriage Act), National Federation of Independent Business v. Sebelius ( Obamacare), Obergefell v. Hodges (same-sex marriage) and this term’s Masterpiece Cakeshop v. Colorado Civil Rights Commission ( free exercise clause ).
But that didn’t make him any less frustrating to libertarians — at least those of us who care about the rule of law rather than simply achieving what we consider to be good policy results.
Take his celebrated opinion in Obergefell in 2015. What should have been an easy case about the propriety of certain marriage-licensing schemes under an equal protection clause that says the government can’t treat people differently for no good reason, instead became yet another opportunity to wax poetic about the meaning of life. The rule of Obergefell seems to be that you take a scoop of due process and a cup of equal protection, wrap them in some dignity, and then enjoy the waves of adulation.
That’s not law.
Particularly in a common law system like ours, the destination is not the only important thing. How you get there is vitally important, even more important than the outcome.
As I noted yesterday, Justice Kennedy is a very conservative justice with strong libertarian leanings who votes from his political convictions and backs the law out of it. He has not been a good judge. A good judge’s opinions comport with the law regardless of his or her political views.
Any wailing and gnashing of teeth about Trump’s appointing a conservative justice to replace Kennedy upsetting the balance of the court is greatly exaggerated. It would preserve the balance of the court except in cases where Kennedy’s sexual libertarian streak would have guided him.
Let’s hope for a justice who follows the law over his or her heart. That’s what good judges do.
“Let’s hope for a justice who follows the law over his or her heart.â€
Perhaps that’s why the left is wailing and nashing it’s teeth. I hope Chris Mathews was not out of his blood pressure medication because he clearly was not getting a tingling feeling down his leg.
They shouldn’t. A justice who follows the law will not overturn Roe v. Wade or Obergefell. One who follows his or her heart could.
Anyone who starts waving the bloody flag of Dred Scott doesn’t understand common law systems. Common law systems are undergoing continuous refinement and revision. We’ve had a century and a half of opinion since Dred Scott and over a century of opinion since Plessy, sixty since Brown v. Board.
IMO there’s more worry that justices will take Roe seriously. It doesn’t provide for abortion on demand, deny the state’s interest in the lives of the unborn, or eliminate the state’s power to intervene in decisions to abort.
Someone will presumably put together a list of 5-4 in which Kennedy sided with liberal justices, but I don’t think it was merely sexual liberty cases. One example would be the case requiring the EPA to respond to climate change issues. Environmentalists were counting on the EPA to push requirements that they cannot get passed into law.
OTOH, the angsty coverage this morning lamenting Kennedy showing his true colors by retiring now is pretty unhinged. Kennedy was a Republican, not Gingrich Republican, nor a Souter Republican (pronounced “‘dem-É™-krat”) and I would have expected him to retire when a Republican could replace him.