Poor John Roberts: He just can’t catch a break from conservatives.
After voting to uphold Obamacare for the second time during his tenure last week, Roberts caught a lot of flak from the right. The chief justice even caught hell from the right on his bench, with Antonin Scalia opining that Roberts had made the health care initiative “SCOTUScare.”
Oddly enough, all this rage at Roberts for Obamacare has seemingly distracted conservatives from the supposed “swing vote” on the court — Anthony Kennedy. In addition to joining Roberts in saving Obamacare, the supposedly conservative Kennedy authored two decisions — on same-sex marriage and housing discrimination claims respectively — that imposed the will of elite opinion on the rest of the country.
Maybe Roberts is getting the hate because he was sold as a true-blue conservative. But Kennedy was also sold that way when he was placed on the court in 1988 after the nomination of arch-conservative Robert Bork failed to pass the Senate in 1987. The Reagan appointee looked poised to bring judicial restraint and a respect for liberty when he was confirmed.
However, for most of his career Kennedy has failed to do as promised, and he proved last week that he’s the worst Supreme Court justice on the bench right now.
Yes, the worst.
The out-and-out liberal justices like Ruth Bader Ginsburg and Stephen Breyer are not nearly as bad as Kennedy simply because they make decisions based on their own principles.
On the other hand, Kennedy appears to be making decisions based more on the supposed popular consensus — which happens to now align with the liberal jurisprudence of Ginsburg and Breyer.
Not only that, but the legal weathervane tries to look like an intellectual heavyweight when his latest opinions are gooey, feel-good nonsense draped in the dour decor of legalese.
Simply put, Kennedy has abandoned any pretense of principle in favor of etching his name on the so-called right side of history.
Take his opinion on the case that legalized gay marriage in all 50 states. Kennedy argued that marriage is a “fundamental right” and, thus, he said it is necessary to grant an undefined “dignity” to gay individuals seeking the arrangement.
This argument used quotes from Confucius, Cicero and Tocqueville for reference, but it mainly relied on unbridled emotional sentiment for justifying itself. The opinion suitably reached its apex in the concluding paragraph.
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Scalia righteously mocked Kennedy’s opinion as a decline from “the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” Scalia also hit Kennedy for contradicting the dignity-loving justice’s own 2013 opinion that marriage is an issue best left to the states.
Clarence Thomas refuted Kennedy’s idea of dignity and said that government is incapable of bestowing that quality to citizens.
Chief Justice Roberts warned that Kennedy’s reliance on the doctrine of “fundamental rights” was eerily similar to the justifications the Supreme Court of the early 20th century used to gut labor protections.
Even ardent same-sex marriage supporters have criticized Kennedy’s argument. They believed the potential gay rights icon should have relied more on the Fourteenth Amendment’s Equal Protection Clause to overturn gay marriage bans instead of the doctrine of fundamental rights. The liberal argument here is that marriage amendments directly target a “vulnerable minority” for no compelling reason.
Interestingly enough, though, another Kennedy decision from last week upheld a broad interpretation of a law that’s supposedly designed to protect vulnerable minorities from discrimination — the Fair Housing Act.
The judge who longs for a National Mall statue issued another feel-good opinion that reaffirmed the theory of disparate impact — an idea that discrimination can occur even when there’s no evidence of bias.
In the swinging justice’s opinion, the Fair Housing Act “must play an important part in avoiding the … grim prophecy that ‘[o]ur nation is moving toward two societies, one black, one white — separate and unequal’… The Court acknowledges the Fair Housing Act’s continuing role in moving the nation toward a more integrated society.”
Justice Samuel Alito warned that this decision would not have such a rosy impact. In Alito’s opinion, it would result in “unfortunate consequences for local government, private enterprise, and those living in poverty” by potentially “interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision.”
In a separate dissent, Justice Thomas criticized the majority opinion for buying into the “the unstated — and unsubstantiated — assumption that, in the absence of discrimination, an institution’s racial makeup would mirror that of society.”
Furthermore, as Alito hinted at, the bill could have devastating economic consequences and significantly lower the quality of such necessary services as fire departments.
But that appears to be no concern for the justice who once preached judicial restraint.
The worst part about Kennedy is not his decisions, but the way he reached them. His argument seem to follow wherever the wind is blowing — even if it means overriding his own stated opinions in the process.
Many in America like to think that polarized politics are a huge problem. But a bigger problem lies not with ideologues making policy, but unprincipled hacks like Kennedy setting the agenda. Those bereft of principles rely on what’s popular to make decisions — which is a terrible standard to go by. Popular approval can change in the blink of the eye and usually relies on emotion rather than reason for its conclusions.
The Supreme Court was intended to resist the impulse of popular emotions in order to pass sober judgments. Today, thanks in large part to Anthony Kennedy, the Court has embraced this impulse and become the vehicle for implementing elite opinion onto Middle America.
It’s unquestionable that the Court has been infected with the virus of judicial activism. But the blame for this infection has less to do with the liberal justices conforming to expectation. They’re not the problem. The blame belongs to the supposed moral compass who has transformed himself into the best tool for implementing this agenda.
