Tag: Anthony Kennedy

Trumping the Court: A Look at the Hand the President Must Play


With Justice Anthony Kennedy’s retirement announcement, the battle is on, supposedly,* for the future course of the Supreme Court. There has already been plenty of heated, and some reasoned, video and written commentary on possible nominees. Some are campaigning for particular candidates, while others are leveraging the occasion to score political points for their position or party.

I fell into some of that myself late last week, raising my voice to a dear friend when we were really just differing on the level of analysis. Realizing I was too tactically focused, I had to think and research a bit more, leading to this piece. Beyond the kabuki theater run by Senators and pundits for multiple audiences, President Trump must play for both the short-term win and medium-term win.

The short-term win is getting his first choice confirmed before the 2018 midterms, with possible second-order benefits in House and Senate races. The medium-term win is a series of decisions by 2020, confirming President Trump’s ability to deliver on his promises, and distinguishing him from past Republican presidents, whose picks’ judicial records have been uneven to downright dismaying. The long-term, beyond his presidency, is unknowable, subject to future presidents’ Court nominees. The short- and medium-term campaign will be fought with a nominee from President Trump’s list of 25 possible Supreme Court candidates.

The New Heroes of Ricochet


I don’t follow politics so I can watch liberals cry. My goal when arguing with my leftist friends is not to make them secrete so many tears that I can comfortably wallow in a pool of progressive lamentations. However, I must admit, upon hearing about the retirement of Justice Kennedy, I did take a trip over to the usual suspects (Vox, Slate, ThinkProgress, Salon) just to see how lachrymose they would become. I did not expect to stay… I didn’t plan to gloat… but despite my intentions, I found myself staying to take a nice long shower in the torrent of liberal tears, I showered for longer than 20 minutes just to stick it to the California water police.

While there, I was a little surprised to learn that Justice Kennedy is no longer the Number One GRH (Gay Rights Hero). Merely by deciding at the age of 81 to retire, he has forfeited any and all plaudits for rulings he made previously. By leaving the national stage a lifetime of work was washed down the drain, along with those tears.

Jim Geraghty of National Review and Greg Corombos of Radio America review Justice Anthony Kennedy’s 30 years on the Supreme Court and anticipate President Trump’s second opportunity to nominate a justice to the nation’s highest court. They then laugh at the hysterics of Chuck Schumer and other Democrats following Kennedy’s retirement. They also look at a report that suggests both Democrats and Republicans tend to stereotype the other side and are wildly inaccurate.

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I’m aware this post is not as timely as it would have been last November, but I’m eager to hear the Ricochet community’s thoughts. Last November, a few campus rabble rousers across the country delivered a wakeup call: institutions of higher learning are not doing enough to atone for the largely racial sins of the […]

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How the Clean Water Act Went Off the Rails


shutterstock_121109029Late last month, a federal district judge in North Dakota took the rare step of questioning the scope of the EPA’s jurisdiction under the Clean Water Act, holding up a new agency rule that includes a capacious definition of the “waters of the United States.” As I note in my new column for Defining Ideas, we wouldn’t be in this mess were it not for a long string of judicial decisions that have consistently increased the EPA’s authority and muddled the legal landscape:

… The massive nature of this new regulation is made plain in the introductory paragraph of Justice Antonin Scalia’s 2006 plurality opinion in Rapanos v. United States:

“In April 1989, petitioner John A. Rapanos backfilled wetlands on a parcel of land in Michigan that he owned and sought to develop. This parcel included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 20 miles away. Regulators had informed Mr. Rapanos that his saturated fields were “waters of the United States,” that could not be filled without a permit. Twelve years of criminal and civil litigation ensued.”

The Libertarian Podcast: The Supreme Court and Gay Marriage


Still hungry for more razor-sharp constitutional analysis after yesterday’s Law TalkYou’re in luck. We’ve got a double-shot this week, as Professor Epstein also weighs in on the Supreme Court’s gay marriage decision in Obergefell v. Hodges in the new episode of The Libertarian. And the conversation here is a little different — for instance, Richard discusses whether Chief Justice Roberts has any discernible judicial philosophy and whether Rand Paul’s suggestion that we get government out of marriage altogether is practical. It’s all available by listening in below or by subscribing to The Libertarian via iTunes or your favorite podcasting app.

Obergefell’s Threat to Religious Liberty


As a libertarian, I support same-sex marriage. As a libertarian, I also fear the totalitarian overtones sounding from the next round of gay rights initiatives. The nature of the Supreme Court’s recent ruling on same-sex marriage in Obergeffel v. Hodges has only compounded the danger. As I note in my newest column for Defining Ideas from the Hoover Institution:

…[I]n the wake of Obergefell, we have to ask what the next step in the struggle over same-sex marriage will be. By insisting that same-sex marriage is a fundamental right, Kennedy has consciously introduced an equivalence between race and sexual orientation. How far is he prepared to go? In the 1983 case of Bob Jones University v. United States, the Supreme Court upheld an IRS decision to deny tax-exempt status to schools engaging in racial discrimination. The Court acknowledged that it could not outlaw the Church’s practices, which were protected as a free exercise of religion. But the differential tax treatment was fine because “the Government has a fundamental, overriding interest in eradicating racial discrimination in education.”

The Court’s Assault on Democracy and States’ Rights


One of the ironies of the Supreme Court’s decision in Obergefell v. Hodges is that it is being touted as a victory for civil rights. Surely it’s an unusual civil rights victory that disenfranchises the people of all 50 states on a critical issue. After a mere decade of political debate on the topic of same-sex marriage, the voters have been told that our opinions are no longer needed. Justice Kennedy will tell us what we think.

The violence to democracy is bad enough, but it is greatly compounded by the damage to American federalism.  The federal government has no constitutional authority to regulate marriage, nor does it have a roving license to promote “dignity” or “autonomy” or any of the other vacuous phrases contained in Kennedy’s majority opinion. If the Constitution granted anything like that kind of authority to the central government, the document would never have been ratified. In Federalist No. 45, James Madison assured readers that, under the proposed Constitution, the states would remain sovereign over “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people” (emphasis added).

SCOTUS and the Age of the Imperial Judiciary


In the Philadelphia Inquirer, my hometown paper, I critique the Supreme Court’s decisions on gay marriage and Obamacare. As a policy matter, I supported gay marriage, but the Constitution reserves the question for the voters of each state, not the judicial process. The weakness of the Court’s reasoning — is it Due Process?  Is it Equal Protection? — suggests the decision’s political nature. Many may celebrate the result, but they should not welcome the steady erosion of democratic self-government.

Indeed, the political nature of Obergefell becomes readily apparent in the contradictory, vague logic of the majority opinion by Justice Anthony Kennedy. The holding fits within none of the established precedents governing the due-process and equal-protection clauses. Kennedy says marriage is a fundamental right, but he admits that American society had long understood that right to be only between a man and a woman. He suggests that the right to equality may require gay marriage, but gays do not receive the heightened constitutional protection reserved for racial and religious minorities. Kennedy could have recognized that gays should receive the same protections against discrimination as gender, but he could not because recognizing sexual orientation as a protected class might open up a Pandora’s box of new constitutional claims by every self-defined group.

What Justice Kennedy Got Wrong in the Obamacare Oral Arguments


In my new piece for Defining Ideas from the Hoover Institution, I’m taking readers through the Supreme Court’s oral arguments last week in the case of King v. Burwell, which will decide the fate of Obamacare subsidies in states that are serviced by a federal health insurance exchange. (I also covered this topic at length in Libertarian podcast with Troy Senik last week.) As I note there, perhaps the most inventive (and alarming) argument of the day came courtesy of Justice Anthony Kennedy:

In one sense the most novel argument of the day was an ill-thought-out suggestion by Justice Anthony Kennedy that the ACA might be unconstitutional if it were read to deny subsidies to health care policies purchased on the federal exchanges. Justice Kennedy never bothered to state whether his suggestion would require invalidation of the entire statute, or the creation of a massive subsidy that Congress itself had never authorized. There is, fortunately, no need to choose between these two unappetizing alternatives. Kennedy tossed off an argument that no one ever raised throughout the litigation: the denial of the federal subsidies would coerce individual states to set up exchanges in order to benefit their citizens.

Fight Against Gay Marriage Running Out of Legal Avenues


shutterstock_159118949The Supreme Court’s decision yesterday to leave undisturbed cases striking down gay marriage bans in five states should be no surprise, though it does put the lie to the Court’s gay marriage decisions two terms ago.

In that case, Justice Anthony Kennedy’s opinion for himself and four liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) spent most of its time praising federalism and admitting that marriage and family law remained under the control of the states. It then briefly — and without much explanation — found that the federal Defense of Marriage Act could only come from irrational hatred of gays. DOMA’s refusal to grant gay marriages the same federal benefits as heterosexual marriages, the Justices claimed, violated the principle that all laws must have some rational basis. Presumably the Court did not find all bans on gay marriage throughout the nation unconstitutional because of the unprecedented nature of the issue, which had not yet been fully discussed and ventilated in the lower courts.

The decision is no surprise because there is no split in the lower courts. Every federal appeals court to face the issue has found bans on gay marriage to be unconstitutional under the same logic as Windsor, which itself did not strike down any state marriage laws. The Justices are unlikely to take the case until a circuit court upholds a state ban on gay marriage. Why should the Court do so when it can rely on the lower court judges to do its work?

Misguided Priorities on First Amendment Fights


Yesterday, in Town of Greece v. Galloway, a 5-4 majority of the Supreme Court upheld ceremonial prayers at the start of a town’s board meetings, as noted in Adam’s earlier post. Two thoughts occurred to me while reading the decision.  

First, I continue to be impressed at how much effort both sides put into fighting over simple, symbolic signs of religion that do not come remotely close to running afoul of the Establishment Clause. It is hard to believe that the Town of Greece — or any of the many cities and states that have been sued over similar religious symbolism — is trying to found a mandatory state religion of the kind commonly seen in Europe.  

Half a Win on Supreme Court’s Affirmative Action Ruling — John Yoo


Most conservatives were probably happy with the news of yesterday’s Supreme Court decision in Schuette v. BAMN, which upheld Michigan’s state constitutional ban on affirmative action. The plurality opinion, however, should curb their enthusiasm.

Written by Justice Anthony Kennedy and joined by Chief Justice Roberts and Justice Alito, the plurality treated the case not as one about a color-blind Constitution, but as a political process issue. They essentially reduced the question to whether Michigan was within its rights to enact the ban through a ballot initiative. They found that it was — but suggested that a state could also legitimately use the exact same process to reach the opposite outcome.