“Because in this post-rule-of-law stage of our republic’s decay, there’s really only one person in all the land whose opinion matters: Anthony Kennedy.”
That’s a quote from anti-immigrant extremist Mark Krikorian. The thing is, though, it could have just as easily come from a left-wing writer — and it would have rung equally as true.
As I wrote about before, the votes of 8 of the 9 Supreme Court justices are foregone conclusions for any decision with partisan, red vs. blue, Republican vs. Democrat implications. If a decision such as Citizens United is seen as benefiting Republicans and their donor class more than Democrats, for instance, then it will be supported by Roberts, Scalia, Thomas and Alito, and opposed by Breyer, Ginsburg, Sotomayor and Kagan. Guaranteed. This is an iron-clad rule with one lone exception. Conversely, the recent gay-marriage ruling was seen as benefiting liberal interests and conflicting with conservative interests; therefore, the same eight justices’ votes were similarly cast before even looking at the case law or hearing arguments, only in opposite directions as Citizens United. (The only exception to this rule remains with Roberts and Obamacare; other than this singular strange heterodoxy, Roberts is as reliable of a Republican as Chuck Grassley.)
Which means, as Krikorian correctly observes, the only vote that matters on partisan Supreme Court decisions is that of Anthony Kennedy. And that should scare the hell out of anyone.
Both sides complain with equal gusto about Kennedy, but he is the only one left on the SCOTUS bench who values any kind of jurisprudence over short-sighted partisan interests. Now one may question the validity of his legal reasoning for this or that case, certainly. Hell, maybe he literally just flips a coin. I don’t know. But both sides need to admit: Justice Kennedy is the only one keeping our nation’s highest courtroom from becoming a rubber stamp for one party or the other.
Presidents of both sides now judge potential SCOTUS nominees solely by party loyalty, and whether they will have the back of liberal or conservative interests and their respective constituencies and donor classes. Actual legal reasoning is immaterial; the only point of their written opinions is to contort legal concepts into pretzels to justify their predetermined, partisan votes.
This trend of valuing loyalty over legal thinking seems to go back to the failed nomination of Robert Bork in 1987. According to Democrats, Bork was too much of a partisan extremist, and that is why they blocked his nomination. According to Republicans, Bork was a reasonable, seasoned legal thinker, and it was only his “Borking” that began the current trend as a reaction. Either way, both sides agree that Bork’s replacement — Anthony Kennedy — will be the last of his kind. From here on out, it’s nothing but partisan hacks.
The idea of Kagan or Scalia looking at a case involving immigration law, or transgender rights, or the death penalty, and rendering their judgement based on the merits of the particular case, or legal precedent, or the Constitution, is as bizarre a fantasy as batwinged unicorns flying over D.C. while battling rocket-powered dingos with laser farts while Rachel Maddow greets Donald Trump with a big, warm, sloppy French kiss.
Anthony Kennedy is 79 years old. According to a 2006 Harvard study, the mean age of SCOTUS retirement is 78.7. I’m sure he will hang around for a few more years, barring health complications… but his replacement will be just another robot for one side or the other. After Kennedy, we will know the decision for every case the court hears before it even hears it. After Kennedy, every case will be decided not on the law, or on oral arguments, or on precedent, or the Constitution. Every case will be decided based on the party affiliation of the president at the time of Kennedy’s retirement.
After Kennedy, the Supreme Court will become a kangaroo court.
I don’t use that term lightly. According to wikipedia: “A kangaroo court is often held to give the appearance of a fair and just trial, even though the verdict has in reality already been decided before the trial has begun.” This is already the case with every “justice” besides Kennedy. Assuming his replacement also follows in the Kagan/Alito model, the term will then apply to the entire court.
What happens when conservatives know they can get anything, anything, passed or repealed through the SCOTUS? Forget the trouble of trying to pass something democratically through Congress. Why bother? Their five boys will ban abortion, abolish all gun regulations, pass a flat tax, end Social Security, force deportations of all illegal immigrants… whatever the hell they want, they got.
What happens when liberals know they can get anything, anything, passed or repealed through the SCOTUS? Massive and open immigration to every third world population; single-payer healthcare; gun confiscation; the sky’s the limit. It just won’t matter how controversial or even unpopular a given policy is. All they need to do is get a relevant case in front of their five guys, and they’re set.
In case you couldn’t tell: in such a Supreme Court, the rule of law no longer applies. Neither does democracy, nor federalism. All the court needs to rule by partisan fiat is any sort of case before it. And the only man keeping us from this dystopia is generally the most hated man in Washington.
You see, instead of being horrified by the thought of a runaway SCOTUS ruling through undemocratic Diktat, both sides truly salivate at the thought, each thinking they will get the better of the other. Liberals hope Kennedy retires while Obama is still in office, and Republicans pray Bush will prevail over Clinton and that Kennedy retires during his first term.
Neither side has any interest in a fair court that pursues the rule of law.
Whichever side does win out will find their sweet victory turn sour when one of “their” guys inconveniently retires, or dies, during the “wrong” president’s tenure. Sure, it’d be nice for conservatives if Jeb Bush names Kennedy’s replacement… but what happens if the next Democratic president names the replacement for Clarence Thomas, thus swinging the 5-4 vote in the wrong direction? Then, at long last, I suppose the Daily Caller would start running pieces bemoaning our partisan court.
This is going to become the most fundamentally important story in American politics someday. Until then, here’s to Kennedy’s long, long, LONG life. May your lifespan break records, sir!