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Post Justice Kennedy Retirement, Legacy
Created by John Eipper on 06/30/18 3:07 AM

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Justice Kennedy Retirement, Legacy (David Duggan, USA, 06/30/18 3:07 am)

Since none of my WAIS compatriots has weighed in on what will undoubtedly be the biggest driver of the fall election news cycle: the retirement of SCOTUS Associate Justice Anthony Kennedy, I thought that I'd offer the following.

The last remaining of the three Reagan appointees (his most immediate predecessor, Antonin Scalia, died two years ago; Sandra Day O'Connor resigned mid-way through GWB's presidency), Kennedy had been a federal appellate court judge in the wild-and-woolly 9th Circuit (California and environs), which had the reputation of being the most reversed of the 13 federal circuits (11 geographical, DC and the "federal circuit" which hears appeals from, among other courts, the Court of Customs and Patent Appeals--who knew). Actually he was Reagan's third choice for the slot, Robert Bork having been "borked" out of the nomination thanks to those legal all-stars Teddy Kennedy and Joe Biden. After Bork, Reagan nominated the Hon. Douglas Ginsburg (no relation to the Notorious RBG, Ruth Bader Ginsburg) of the DC Circuit, but when it was disclosed that Doug had smoked marijuana while teaching at Harvard (I can think of nothing more reasonable given the whacko faculty there), he withdrew his nomination. Kennedy got the nod, and the rest as they say is history.

Since I'm not a constitutional scholar, I cannot comment on Tony's jurisprudence, assuming there ever was one. To this outsider, however, it seemed as if he delighted in taking over the job of "philosopher king" from maverick John Paul Stevens, who retired eight years ago, giving Obama his second Supreme Court appointment (until Neil Gorsuch was seated, the Court had no Protestants on it). "Philosopher king" is perhaps the synonym of "swing vote," and Kennedy was most often the decider between the warring fiefdoms: the Scalia-led "originalists" and the RBG-led "living constitutionalists." Recently, he wrote the decision conferring on gays the right to marry in Obergefell, solidifying his pro-gay agenda credentials after ruling in Windsor that the surviving lesbian spouse of a decedent did not have to pay estate taxes, which may have been judicial atonement for his having authored the opinion in Boy Scouts v. Dale, holding that the Scouts did not have to open up their scoutmaster ranks to homosexuals. Decisions on abortion and capital punishment were similarly over-the-map.

Never having written a judicial opinion, I may be ill-situated to comment on Kennedy's style. Instead, I'll let Scalia do it for me. Kennedy's opening sentence in Obergefell reads: "The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity." Quoting this passage, Scalia said: "If ... I ever joined an opinion for the Court that began [as such] I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of a fortune cookie."

As one commentator has suggested, channeling his inner Shakespeare, "nothing became [Kennedy's] life like the leaving of [the Supreme Court]." Since I have run out of fortune-cookie aphorisms to comment on Kennedy's departure, having sat on the Court for 30 years, I will merely say that just as the 2016 election was a referendum on who would be appointed to the Supreme Court, this mid-term election will be a referendum on Donald Trump's judicial selections.

JE comments:  Fortune cookie or not, Kennedy was the judiciary equivalent of Florida or Ohio.  I would argue that this "decider" factor alone made him the most significant Supreme Court justice of his generation.  Moreover, his departure is a godsend to Trump, as the ensuing replacement process will occupy the news cycle for the next several months, taking the heat off Trump's scandals and refocusing the nation's attention on the classic hot-button issues:  abortion, civil rights, and the like.


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  • Kennedy Retirement; Thoughts on the Roberts Court (Istvan Simon, USA 07/01/18 4:12 AM)
    I am no Constitutional scholar; I am not even an attorney. Nonetheless I read the Constitution and I believe that its philosophy and intent are sufficiently clear. I will not comment on Justice Kennedy's legacy, I leave that to more qualified people like David Duggan (June 30th). But I will comment on the Supreme Court itself, and its role in American democracy.

    The Court has no force of any kind with which to impose its opinions. It therefore depends entirely on the respect it earns from the American public . I am afraid that the Roberts Court is rapidly fettering away that respect with a series of monumentally wrong decisions. In my opinion these did immense damage to the the United States and our democracy, and thereby made us into a less perfect union. Anthony Kennedy was one of the votes for the majority in all of these wrong decisions.


    1. In simple language, Citizens United made bribery an accepted part of our government. It must be overturned and I have no doubt that eventually it will. That money is speech is an absurdity that twisted the meaning of the First Amendment beyond recognition.


    2. The upholding of the Muslim travel ban by our "president" damaged the First Amendment even further. We are supposed to treat all religions with equal respect and the Muslim ban is another abomination that this Court must atone for.


    3. The Gerrymandering decision is the third strike of the Roberts Court. It undermines our democracy and makes a mockery of the fairness of our Congressional representation.


    If one is to expect anything from a Supreme Court it is to not interpret the Constitution in ways that undermine our democracy. The Roberts Court and Anthony Kennedy are guilty of doing just that with the decisions I just mentioned. Shame on them.


    JE comments:  I see no scenario by which Citizens United will be overturned by the post-Kennedy court.  Barring a "full-Bork press" from Senate Democrats, Kennedy's replacement will be far to the right of Kennedy.  Or might Trump confuse everyone and pick a moderate?  This could be the wisest move for him politically, as it would take away the "energize the opposition" factor in the run-up to November.


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    • Was the US Ever Truly Democratic? Jesse Owens and Hitler (Eugenio Battaglia, Italy 07/02/18 4:18 AM)
      Lately several WAISers have shed tears on the condition of democracy in the US.

      But in the US has there ever been a real democracy?


      I lived for several years in Mount Prospect (Illinois), a wonderful place, where for sure it was possible to breathe democracy and well-being, but...


      For a long time democracy in the US was almost like the democracy of South Africa and Israel, where there was/is democracy but only for a portion of the citizens.


      Just remember the great Jesse Owens who in his biography (The story of Jesse Owens, 1970) wrote that in spite of the usual fake news he was well treated by Hitler but not by President Roosevelt.


      Jesse remained a friend of his German adversary Luz Long, who suggested to him how to win. After the war Owens went to visit his family in Germany. Luz Long died in Sicily in the Massacre of Biscari, 10-14 July 1943, ordered by the war criminal US captain John Compton.


      The German newsman Siegfried Mischner mentioned a handshake between Hitler and Jesse in a back room of the Olympiastadium. It is said that Jesse had a photo of this event, but no one wanted to publish it.


      After 1964 we could say that there is democracy in US domestic politics but if a nation wants to be a real democracy, it should be democratic in domestic politics and foreign policy.


      For sure, an imperial policy is generally not democratic. Just remember the policy promulgated by Franklin D. Roosevelt: "Yes, but he's our bastard." Such a policy has been continued up to the present.


      JE comments:  Some sources say that Harry S Truman, not FDR, came up with the "our bastard" quote, in reference to Nicaraguan potentate Anastasio Somoza.  My guess is it's apocryphal, but like most invented quotes, it "needed" to be said.



      Did anyone see the 2016 film Race, about Owens?  One of the subplots is the friendship between Owens and Long.


      A final question:  at what point in history was the US the most democratic?  I'm going to mull this one over but in the meantime, send your thoughts.

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  • Neil Gorsuch's Religion (Edward Jajko, USA 07/01/18 4:39 AM)
    In response to David Duggan (30 June), isn't Justice Gorsuch a Roman Catholic? A graduate of a parochial school and a Jesuit high school?

    JE comments: Sources say Gorsuch was raised Catholic, but presently attends an Episcopal church.

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    • Neil Gorsuch's Religion (David Duggan, USA 07/02/18 9:34 AM)

      In response to Ed Jajko (1 July), it is my understanding that Gorsuch's wife is a Protestant and that he began attending Anglican services while at Oxford.


      JE comments:  We could get an interesting discussion going here.  How common is it to change a religion because of a spouse?  Some might say that the Catholic-Anglican switch (or vice versa) is not such a biggie in theological terms.

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