Impeach Justice Kagan?
As our own Richard Epstein noted over here, Congressman Peter DeFazio demonstrated that he is a crank of the first order when he announced “investigating articles of impeachment against Justice Roberts.” Richard’s essay ends with the sage advice that “the best thing to do with Representative DeFazio is to ignore him.”
But being a crank myself, I just can’t let go. It seems to me that DeFazio’s logic sets the stage for a more plausible (though still unlikely) impeachment case against Justice Kagan. DeFazio argues that Roberts perjured himself during his confirmation hearings when he made very general remarks about being an “umpire” and not an activist judge.
Turning to the Kagan confirmation hearings, she made the following statement: “There is no federal constitutional right to same-sex marriage.” If Kagan votes to affirm Judge Walker’s holding that there is a “fundamental right” to gay marriage, should Congress investigate whether she was lying at her confirmation hearings? One could argue that she merely made that statement to placate social conservatives but never actually believed what she was saying.
Maybe Kagan won't vote to affirm Walker's ruling in which case my point is moot. But being a crank, I like to get started early.
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Comments :
May '10
Re: Impeach Justice Kagan?
You may be a crank, but you're a right, lovable crank!
May '10
Re: Impeach Justice Kagan?
Fail to affirm Walker's decision? Like hell she will. But your argument is a compelling one.
Edited on Oct 26, 2010 at 2:34pmAug '10
Re: Impeach Justice Kagan?
What's sauce for the goose is sauce for the gander. Turnabout is fair play; and let the devil take the hindmost. I'm all for it! Let's have an Impeach-a-palooza!
Oct '10
Re: Impeach Justice Kagan?
Kagan’s answer would be that there isn’t a constitutional right to same-sex marriage, but States don’t have a right to violate another’s equal protection under the 14th Amendment (See O’Connor, Lawrence v Texas). Thus the issue is not same-sex marriage in the Constitution, but equal protection and whether a state has a right to enforce a law that violates a person’s equal protection under the 14th amendment.
You see, there is no Constitutional right to same-sex marriage, just equal protection under the law. It’s kind-of like the way the Supreme Court looks at alternative-coupling (that’s as delicately as I can put it). It’s not alternative-coupling, it’s “liberty” that’s protected by the substantive due process clause of the 14th Amendment. If it’s upheld under SDP, same-sex marriage will be called “liberty”. A state cannot enforce a law violating your liberty. What is “liberty” you ask? It’s the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” (Casey and Lawrence).
Oyez! Oyez! God Save This Honorable Court
Re: Impeach Justice Kagan?
Lo Fon, doesn't it come down to the same thing? The equal protection argument only works, I think, if California is violating a "fundamental right." And so, somewhere lurking among the penumbra, Judge Walker found that the 14th Amendment creates a fundamental right to marry that must be open to all. I think Kagan will have to confront whether the right exists, ie, she'll either have to stick to her position that the Constitution does not create such a right, or she'll have to claim that she hadn't really thought it through (implausible), but that she was persuaded to change her mind by Judge Walker's brilliant opinion (really implausible).
Jun '10
Re: Impeach Justice Kagan?
Judge Walker cited Cleveland Board of Education v. LaFleur (1974) where Justice Stewart wrote: "This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause..."
Jul '10
Re: Impeach Justice Kagan?
Let's level-set here:
1. Yes, you are a crank. God Bless you for that. We need more cranks.
2. DeFazio has received way more press than he deserves for this idiocy. Let's avoid taking him seriously.
3. Of course Kagan will support Judge Walker. She is a progressive shill who will find some way to disavow her stated intent.
4. Ricochet folk are really smart about judicial matters. Are you all lawyers?
Re: Impeach Justice Kagan?
Joseph - absolutely right, the Court has held that "marriage" is a fundamental right. Whether you agree or not, that's established precedent. But the Court hasn't previously had to explain whether "marriage" has a particular constitutional definition. Does the "fundamental right" of marriage extend only to conventional one-man-one-woman unions, or is it broader? Judge Walker seems to think it extends to any union of consenting adults, so presumably the state must issue marriage licenses to incestuous or polygamous unions as well.
Oct '10
Re: Impeach Justice Kagan?
Adam Freedman
The equal protection argument only works, I think, if California is violating a "fundamental right." · Oct 26 at 2:24pm
It depends on what the meaning of "is" is.
Yes, I think you're right, they're really finding a right to gay-marriage. But, she'd probably frame it as an issue of privacy or equal protection and say that there is no right to gay marriage, but gay people have a fundamental liberty of privacy or equal protection that may not be violated by the State. If gay marriage pops out of that, hey, what can I do? I'm not saying it's a reasonable argument, but it may be more reasonable than saying the Constitution supports a right to define one's one mystery of human life.
Personally, I think the talk of impeachment is fanciful. I don't see it happening. Even if she upheld Walker's decision.
As to gay marriage, I think it's baked in the constitutional cake. As Scalia said in the dissent of Lawrence, "This effectively decrees the end of all moral legislation." If you look at the Walker decision, he relies on Lawrence.
Oct '10
Re: Impeach Justice Kagan?
Even more fundamentally, what is the Supreme Court doing hearing these cases anyways. They don't have to hear these cases, they do it by choice (certiorari). Most of these cases are built on obscure, rarely enforced state laws (Griswold, Lawrence, Einstadt). And in the California case, this was something decided by the people of the state, why do the courts have to get involved? The Court loses credibility when it goes looking for rights in the Constitution so that they may overturn state law. Again, I feel that Scalia was right in his dissent in Lawrence, the Court has weighed in on the culture wars. It didn't have to.
Aug '10
Re: Impeach Justice Kagan?
I live in DeFazio's district, on the south coast of Oregon, and although I haven't seen his name on any list of those Democrats likely to be unseated next Tuesday, there's no question that his opponents have never been more angry, more motivated, nor more determined to turn him out.
Yesterday I drove 90 miles up the coast to Coos Bay, and in every little town along the way there were hordes of people standing along Highway 101 waving signs for Art Robinson, the republican candidate-- and everywhere, everywhere, drivers of cars, pickups, motorcycles, and Mack trucks were honking, waving, cheering, and giving a thumbs-up.
DeFazio's campaign has done a slick job of painting Robinson, a respected scientist and biochemist, as a religious fanatic, racist, and general purpose nut job, and the leftist stronghold of the People's Republic of Eugene ("the spiritual home of the Grateful Dead") may be sufficient to return DeFazio to office, but he has thoroughly alienated the many republicans and independents who've voted for him in the past. He may survive this election, but should be planning for retirement in 2012.
Mr. DeFazio, the times they are a-changin'...
Jun '10
Re: Impeach Justice Kagan?
Adam Freedman
Judge Walker seems to think it extends to any union of consenting adults, so presumably the state must issue marriage licenses to incestuous or polygamous unions as well. · Oct 26 at 7:25pm
Walker wrote:
"Marriage has retained certain characteristics throughout the history of the United States. Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household."
He also acknowledges that "marriage in the United States traditionally has not been open to same-sex couples," but argues that this was based on "state-mandated gender roles" that are now obsolete. So I don't think he approves of polygamy, I think his argument would be that monogamy is our "tradition" and whether to maintain it or permit polygamy is up to the legislature and the voters, but any distinction whatsoever between man and woman in our marriage laws (or any other laws) violates equal protection.
It's the same line of reasoning that led to the recent Spanish court decision that fathers are entitled to breastfeeding leave.
Oct '10
Re: Impeach Justice Kagan?
Joseph Stanko
Adam Freedman
Judge Walker seems to think it extends to any union of consenting adults, so presumably the state must issue marriage licenses to incestuous or polygamous unions as well. · Oct 26 at 7:25pm
Walker wrote:
He also acknowledges that "marriage in the United States traditionally has not been open to same-sex couples," but argues that this was based on "state-mandated gender roles" that are now obsolete. So I don't think he approves of polygamy, I think his argument would be that monogamy is our "tradition" and whether to maintain it or permit polygamy is up to the legislature and the voters, but any distinction whatsoever between man and woman in our marriage laws (or any other laws) violates equal protection. · Oct 27 at 12:52pm
To say that monogomy is our tradition in support of same sex marriage is to strip the word of its implicit meaning in this context. The tradition has been monogamous relationships between men and women, of age, not from the same family... If you arbitrarily say that the definition now encompasses gay marriage, there is no intellectually honest way you can exclude incestual marriages. (continued)
Oct '10
Re: Impeach Justice Kagan?
If a distinction between man and women in our laws violates equal protection, why doesn't a distinction between mother and son (of age) also violate equal protection?
What does gender roles have to do with the number of people in a marriage? Maybe we haven’t discovered the state mandated numbers bias? I don’t understand what it is about numbers that makes one form of union protected and another unprotected. If I want to marry two men instead of one, do I all of a sudden lose my right to define my existence in this universe?
This is what is frustrating about these decisions. Marriage is now redefined in a way that doesn’t logically exclude other forms of marriage, but we’re supposed to accept that somehow these other forms won’t also be recognized.