The country is racked with strife and acrimony over the filling of a single Supreme Court seat. Nobody is supposedly more dismayed over the rancorous political debate than the man who vacated the seat himself. But if Anthony Kennedy would actually look in the mirror, he’d understand that he is the cause of the problem we have with idolatry of the Supreme Court.
Speaking to a group of high school students in his hometown of Sacramento, California, the former justice lamented the loss of civil discourse and the decline of democracy. “Perhaps we didn’t do too good a job teaching the importance of preserving democracy by an enlightened civic discourse,” said Kennedy in response to concerned questions from the audience last Friday. “In the first part of this century, we’re seeing the death and decline of democracy.”
Leaving aside the fact that we are a republic and not a democracy, Kennedy should look at himself to discover the number-one source of the breakdown of our democracy or republic. When you believe that all the power over our culture and society and even our borders resides in the hands of unelected judges, most pivotally the “Kennedy swing vote” on the Supreme Court, then nothing else matters but who will fill that seat. Our Founders didn’t envision this much uncivil discourse over a single Supreme Court seat because they understood that we have three branches of government, with the judiciary as the weakest, and 50 individual state governments. But according to Kennedy, a Supreme Court justice can single-handedly redefine the building block of all civilization from the bench.
In the infamous same-sex marriage case of 2015, Justice Anthony Kennedy didn’t just redefine marriage from the bench. He remade our Constitution and our entire system of governance. After asserting that the framers of the Fourteenth Amendment couldn’t possibly know “the extent of freedom and all its dimensions,” Kennedy penned twenty-three words that will forever endanger our sovereignty unless the courts are stripped down to size: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
The “we” is, of course, referring to the courts. Kennedy believes that the courts are the final say even over natural law and that they can rediscover new insights into the Constitution as they see fit.
This is more power than King George held at the time of the Revolution. As such, it doesn’t take a genius to figure out why such a fabricated position of power will bring out the worst in America every time there is a vacancy.
A polarized and diverse country of this size will always reflect sharp political and societal disagreements. But at least when those decisions are made through the political process, there is always recourse for the losing side to force compromises, concessions, and conditions on those changes, or they can live to fight again another day, reverse course through the electoral process, and see their vision of society actualized through the new representatives.
As Justice Scalia used to say, “Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”
None of this can occur when the consequential societal issues of our time are decided by the unelected branch of government, as Anthony Kennedy would have it.
What’s worse, now any district judge, deliberately shopped by a plaintiff, can create new rights. Just last night, Judge Edward Chen of the Northern District of California said that Trump must continue Temporary Protected Status for primarily illegal aliens from Sudan, El Salvador, Haiti, and Nicaragua. As we noted in a similar lawsuit, the statute explicitly strips jurisdiction over this issue from courts, the president has full authority to discontinue the status, and the statute requires that the program only be temporary. Yet judges are now creating a right to make a temporary humanitarian program a permanent amnesty for illegals.
At the same time, the Ninth Circuit is now asserting that ICE can’t detain Central American teenagers suspected of being MS-13 members. The court said these individuals are entitled to litigate their designation as a gang member, even though they have no right to be in this country in the first place.
Remember, we already won a Supreme Court case over whether a plaintiff can assert that Trump is banned from enforcing immigration law as written because he is a supposed racist, and the high court tossed it out. Yet it’s meaningless. With the system Kennedy and others created, it’s heads the Left wins, tails the Left wins. It’s a perfect one-directional ratchet that Kennedy and his ilk in the corrupted legal profession have created.
Once we agree that a judge sets the terms for life, marriage, and borders, there’s nothing left in our political system but to tear each other apart over judicial picks.
During a speech he delivered at Harvard in 2015, Kennedy was asked by a law student whether state officials are always bound by the “new insights” of Kennedy and his colleagues and whether they are forbidden to “act according to the old understanding of life and the Constitution.”
Kennedy replied by extolling the virtues of those who resign when their faith comes into conflict with what he views as the law. He even gave the bizarre analogy of judges resigning in Nazi Germany, and then noted the following:
Great respect, it seems to me, has to be given to people who resign rather than do something they view as morally wrong, in order to make a point. However, the rule of law is that, as a public official, in performing your legal duties, you are bound to enforce the law.
So, Kennedy himself believes that his branch of government alone has the power to unilaterally alter the Constitution and force others to resign or break the real moral law, reminiscent of a dark time he himself references.
Indeed, there is nothing more antithetical to democracy than the system Kennedy has built for his entire life. If we would undo his judicial tyranny, we would go a long way toward restoring our democratic republic and defuse some of the polarization through federalism.
In one of his final dissents, in Montgomery v. Louisiana, Justice Scalia warned of the dangers of Kennedy’s penchant for inventing new rights. In that case, Kennedy discovered that a sentence of life imprisonment without parole for a juvenile murderer essentially violated the Constitution, even though this practice had been in place since our Founding. He called Kennedy’s opinion an “embarrassment” and an extortion of states in “Godfather fashion.” Scalia observed that Kennedy was also the author of an opinion a decade earlier that essentially gutted the death penalty for juvenile murderers on the basis that life in prison without parole was a severe enough punishment. Yet, a decade later, Kennedy was able to discover a new right for juveniles against even that punishment, much as he discovered gay marriage in the Constitution just two years after he said that states get to decide the issue. “As we learn its meaning,” indeed!
Kennedy made the court powerful enough that everyone in the country feels that their survival depends upon it, so of course they will act out during a nomination fight … as if their survival depends upon it! As Scalia warned in Obergefell, “With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
Indeed, Anthony Kennedy has nobody to blame but himself.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.