Farewell to Justice Kennedy


18 Comments for “Farewell to Justice Kennedy”

  1. posted by Tom Scharbach on

    Lest we lose sight of the fact, there was a time when Republicans did not insist on opposition to constitutional rights for gays and lesbians as a litmous test for appointment to the Court.

    In both Romer and Evans, Justices O’Connor, Souter and Stevens joined Justice Kennedy (Chief Justice Rehnquist and Justices Scalia and Thomas dissented).

    By the time Obergefell was decided, Justices O’Connor, Souter and Stevens were gone, and Justice Kennedy stood alone.

    I don’t suppose that we will see a Republican-appointed Justice join in a decision to protect gay/lesbian constitutional rights for the next decade or so, and that makes me sad.

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    • posted by Tom Scharbach on

      In both Romer and Evans …

      Should read “In both Romer and Lawrence …”

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    • posted by Matthew on

      Lest we lose sight of the fact that Democrats and Democrats alone kept the South segregated for almost 100 years after the Civil War that they started for the “right” to own black people which they still secretly long for today. That’s why you hate, fear, and demonize minority and female conservatives; you hate anything that won’t kowtow to you.

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  2. posted by Jorge on

    I don’t suppose that we will see a Republican-appointed Justice join in a decision to protect gay/lesbian constitutional rights for the next decade or so, and that makes me sad.

    There are many things about the ideological shifts in this country that make me sad. I would rank my former Representative and a contender for the next Speaker of the House being defeated in a primary challenge by a socialist a little higher.

    But at the end of the day, I’ll end up somewhere. So will the followers of Justices Stevens, Souter, and Kennedy.

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  3. posted by MR Bill on

    Presidents under investigation for multiple crimes shouldn’t get to appoint judges: judges appointed by said president should recuse themselves from any case involving said President..

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  4. posted by Tom Scharbach on

    The NYT ran an op-ed this morning with a thoughtful (and I think accurate) assessment of Justice Kennedy’s opinions in the gay/lesbian rights cases.

    The op-ed, “Without Kennedy, the Future of Gay Rights Is Fragile“, written by two law professors, looks into the future of the Court with respect to gay/lesbian rights without the apocalyptic hysteria of the left or the “What, me worry?” blind optimism of the right.

    A few key quotes:

    In the marriage cases, a fair analysis should have depended less on “the universal fear” of loneliness and more on whether the bans were subject to rational-basis review or something stricter. If rational, the bans should survive. If strict, they would fail. Both sides petitioned the court to rule on that question, but Justice Kennedy could not bring himself to decide it.

    These doctrinal points Justice Kennedy neglected are not mere niceties. Lower courts need such guidance to determine whether laws biased against L.G.B.T. people should be upheld. Indeed, lower courts have previously read Justice Kennedy’s opaque language in Lawrence to allow states to ban gay adoption and permit governments to fire employees for engaging in private, consensual sexual behavior. The language in the marriage cases could allow similar mistakes.

    President Trump’s first Supreme Court appointment, Neil Gorsuch, proved how tenuous Justice Kennedy’s pronouncements can be. Just months after Justice Gorsuch was confirmed, the court held that states cannot refuse to include the names of same-sex parents on children’s birth certificates. Same-sex couples were entitled to the entire “constellation of benefits” associated with marriage. Justice Gorsuch dissented, saying states should be free to list only biological parents. If Justice Gorsuch’s narrow view of Obergefell prevails, gays and lesbians may one day enjoy a right to marry without marriage equality.

    I recommend the op-ed as a sensible look ahead.

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    • posted by Matthew on

      The same NYT has been championing gay erasure out of the other side of its mouth with some other stupid article fawning over privileged white hetero parents jumping on the q-word bandwagon in order to find a sex-neutral name for their child to call them, only to settle on the Hebrew word for father. They are not gay allies.

      A handy rule of thumb: allies say gay, bigots say el-jibbity. Words matter. So does the subtext to those words.

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  5. posted by David Bauler on

    Not for nothing, but Justice Kennedy was a compromise nominee. He wasn’t Bork and he hadnt gotten busted for drugs.

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    • posted by Tom Scharbach on

      Doug wasn’t “busted”. He smoked pot as a law student and young professor, and that created a scandal among the “values voters”. He withdrew is nomination.

      Doug served on distinction on the DC Circuit from 1986 to 2011 (and was Chief Judge on the Circuit from 2001-2011). He would have been a very good Justice, in my opinion, both personally and as a result of knowing his record as a judge, which is balanced and leans toward a libertarian approach to the Constitution.

      I think that his record on protecting individual liberty would have been stronger than Justice Kennedy’s, and I’ll bet that he Ginsburg, rather than Kennedy, had been writing the opinions in Romer, Lawrence, Windsor and Obergefell, we wouldn’t be in the pickle we are now in (see my earlier comment and the underlying article) about the rollback.

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      • posted by Jorge on

        Okay I’ll take a look later. But in response to this comment

        Assuming I can leave aside my scorn at what I consider to be an argument that sympathy to snowflakes deserves constitutional protection (maybe I’m just hard-hearted), I think the purpose of legislatures is to look after the general welfare of the people and the purpose of the courts is to decide whether it crosses a line. The harm to gay couples existed, and for an illegal reason. An analysis was done that was perfectly logical and reasonable (at least someone out there thinks so). So what’s the problem? I SUPPOSE the lower courts could find a “rule” like rational basis and strict scrutiny useful. But it’s hardly necessary to make a decision. Didn’t the lower court(s) make one? Then adopt that reasoning, make a ruling on the facts. You don’t need to tell other people how to decide new questions. The point where you need to do that is when you have already decided multiple questions, and gay rights is relatively new ground.

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        • posted by david Bauler on

          ‘…make a ruling on the facts.’

          More goes into the process of judicial review then some TV detective grunting, “just the facts, lady”.

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  6. posted by Tom Scharbach on

    Assuming I can leave aside my scorn at what I consider to be an argument that sympathy to snowflakes deserves constitutional protection …

    Oh, don’t bother. Your scorn for gays and lesbians has been long established on IGF, as has your scorn for the idea that the Constitution offers protection to gays and lesbians. So you don’t have to go all delicate about it at this late date. That horse is long since out of the barn.

    I think the purpose of legislatures is to look after the general welfare of the people and the purpose of the courts is to decide whether it crosses a line.

    Right. And if lower courts are going to do that in a consistent way, then the Court needs to define the line as clearly as possible, providing a standard by which the lower courts can decide whether or not the line has been crossed.

    The problem with Justice Kennedy’s four opinions is that none provide the lower courts guidance about which standard to use to make that decision. The difference between the standards of review (rational basis, heightened scrutiny, strict scrutiny) leads to entirely different results. So, given the disparity of results under the different standards, and the lack of definition by the Court as to which standard is applicable, what is a lower court to do in terms of picking a standard?

    But that’s only half of the problem. Because none of Justice Kennedy’s opinions defined a standard, the Court itself is as free as a bird to define the standard in the future, and the Court will have a ready made opportunity to dispense with the “equal dignity” when Masterpiece comes around again.

    The Court is likely to do so, because the “equal dignity” argument stands in the way of a decision allowing an exemption to public accommodations laws with respect to religious objection to same-sex weddings without opening the door to future decisions allowing an exemption to public accommodations laws with respect to religious objection to inter-racial weddings. So you can expect the erosion and eventual demolition of the “equal dignity” rationale to begin right then and there.

    Wait and see. The four conservative Justices currently sitting are hostile (to say the least**) to Justice Kennedy’s “equal dignity” rationale, and given the list from which President Trump will select the next Justice, it is almost certain that Justice Kennedy’s replacement will be similarly hostile, looking for an opportunity to gut Obergefell. I don’t expect the Court to outright overturn Obergefell, but I do expect that the Court will chip away at the decision until there is nothing much left of “marriage equality” except the “marriage”.

    ——

    ** Chief Justice Roberts’ dissent in Obergefell, for example, didn’t merely express disappointment with the result. The Chief Justice, touted as the “next swing vote”, said that the Justice Kennedy’s opinion had no constitutional basis at all. Don’t expect any support from his corner. Those who believe that the Chief is going to save Obergefell aren’t playing with the full deck.

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    • posted by Jorge on

      Your scorn for gays and lesbians has been long established on IGF, as has your scorn for the idea that the Constitution offers protection to gays and lesbians.

      Save your trickery for someone who falls for it. The only thing you’ve ever long established on this website is your penchant for making up tall tales about me.

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      • posted by Matthew on

        It’s what Regressive Leftists do: they lie, cheat, steal, and do all sorts of nefarious things to protect their anti-woman, anti-child, anti-gay, anti-Jewish, anti-Western agenda, then project their own faults onto those who call them out for it.

        As gays, it’s not gays and lesbians we feel scorn for: it’s those who are trying to find new and creative ways to erase homosexuality, along with Uncle Toms like you who project their bigotry onto those who are smart enough to see the truth.

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    • posted by Tom Scharbach on

      Save your trickery for someone who falls for it. The only thing you’ve ever long established on this website is your penchant for making up tall tales about me.

      If you do not feel “scorn at what I consider to be an argument that sympathy to snowflakes deserves constitutional protection”, then why do you need to “leave aside my scorn at what I consider to be an argument that sympathy to snowflakes deserves constitutional protection”?

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  7. posted by Tom Scharbach on

    Having looked at the Heritage list from which President Trump intends to select a replacement, and having taken a look at the potential nominees that the President seems to have under active consideration, I am starting to understand why Justice Kennedy went to such extraordinary lengths in to bolster Obergefell in his Masterpiece opinion.

    I suspect that Justice Kennedy is going to be very disappointed if he lives five more years, just as Sandra Day O’Connor is reported to have been disappointed with Justice Alito’s destruction of her landmarks.

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