ttystikk
Well-Known Member
https://www.nakedcapitalism.com/2018/07/anthony-kennedy-delayed-constitutional-crisis.html
Anthony Kennedy and Our Delayed Constitutional Crisis
Posted on July 3, 2018 by Yves Smith
By Gaius Publius, a professional writer living on the West Coast of the United States and frequent contributor to DownWithTyranny, digby, Truthout, and Naked Capitalism. Follow him on Twitter @Gaius_Publius, Tumblr andFacebook. GP article archive here. Originally published atDownWithTyranny
Like “swing vote” Justice Sandra Day O’Connor before him, “swing vote” justice Anthony Kennedy has been one of the worst Supreme Court jurists of the modern era.
With swing-vote status comes great responsibility, and in the most consequential — and wrongly decided — cases of this generation, O’Connor and Kennedy were the Court’s key enablers. They
These horrible decisions are easy to list. They expanded the earlier decision on corporate personhood by enshrining money as political speechin a group of decisions that led to the infamous Citizens United case (whose majority opinion, by the way, was written by the so-called “moderate” Anthony Kennedy); repeatedly undermined the rights of citizens and workers relative to the corporations that rule and employ them; set back voting rights equality for at least a generation; and many more. After this next appointment, many fear Roe v. Wade may be reversed.
Yet the Court has managed to keep (one is tempted to say curate) its reputation as a “divided body” and not a “captured body” thanks to its so-called swing vote justices and the press’s consistent and complicit portrayal of the Court as merely “divided.”
Delaying the Constitutional Crisis
The second point above, about the illusion of the Court’s legitimacy, is just as important as the first. If the Court were ever widely seen as acting outside the bounds of its mandate, or worse, seen as a partisan, captured organ of a powerful and dangerous political minority (which it certainly is), all of its decisions would be rejected by the people at large, and more importantly, the nation would plunged into a constitutional crisis of monumental proportions.
We are in that constitutional crisis now, but just at the start of it. We should have been done with it long ago. Both O’Connor and Kennedy are responsible for that delay.
O’Connor’s greatest sin, of course, was as the swing vote in Bush v. Gore, the judicial coup that handed the 2000 election to George W. Bush and Dick Cheney. It was also widely reportedthat on election night at a dinner party “Sandra Day O’Connor became upset when the media initially announced that Gore had won Florida, her husband explaining that they would have to wait another four years before retiring to Arizona.” (More on that here.)
Consider: If the Supreme Court were part of coup that makes a losing presidential candidate the winner, and makes that ruling along partisan and preferential lines that can’t be judicially defended, how could any decision issued by that court be deemed legitimate afterward?
Yet here we are, still publicly asserting the Court’s legitimacy, whatever people think privately, and still watching in horror as decision after decision dismantles old constitutional agreements and erects new ones.
The Legacy of Anthony Kennedy
Kennedy will be praised for his so-called “moderate” or “case-by-case” ideology, bolstered largely by decisions protecting gay rights. Perhaps that will be his legacy.
Continued...
Anthony Kennedy and Our Delayed Constitutional Crisis
Posted on July 3, 2018 by Yves Smith
By Gaius Publius, a professional writer living on the West Coast of the United States and frequent contributor to DownWithTyranny, digby, Truthout, and Naked Capitalism. Follow him on Twitter @Gaius_Publius, Tumblr andFacebook. GP article archive here. Originally published atDownWithTyranny
Like “swing vote” Justice Sandra Day O’Connor before him, “swing vote” justice Anthony Kennedy has been one of the worst Supreme Court jurists of the modern era.
With swing-vote status comes great responsibility, and in the most consequential — and wrongly decided — cases of this generation, O’Connor and Kennedy were the Court’s key enablers. They
- Cast the deciding vote that made each decision possible
- Kept alive the illusion of the Court’s non-partisan legitimacy
These horrible decisions are easy to list. They expanded the earlier decision on corporate personhood by enshrining money as political speechin a group of decisions that led to the infamous Citizens United case (whose majority opinion, by the way, was written by the so-called “moderate” Anthony Kennedy); repeatedly undermined the rights of citizens and workers relative to the corporations that rule and employ them; set back voting rights equality for at least a generation; and many more. After this next appointment, many fear Roe v. Wade may be reversed.
Yet the Court has managed to keep (one is tempted to say curate) its reputation as a “divided body” and not a “captured body” thanks to its so-called swing vote justices and the press’s consistent and complicit portrayal of the Court as merely “divided.”
Delaying the Constitutional Crisis
The second point above, about the illusion of the Court’s legitimacy, is just as important as the first. If the Court were ever widely seen as acting outside the bounds of its mandate, or worse, seen as a partisan, captured organ of a powerful and dangerous political minority (which it certainly is), all of its decisions would be rejected by the people at large, and more importantly, the nation would plunged into a constitutional crisis of monumental proportions.
We are in that constitutional crisis now, but just at the start of it. We should have been done with it long ago. Both O’Connor and Kennedy are responsible for that delay.
O’Connor’s greatest sin, of course, was as the swing vote in Bush v. Gore, the judicial coup that handed the 2000 election to George W. Bush and Dick Cheney. It was also widely reportedthat on election night at a dinner party “Sandra Day O’Connor became upset when the media initially announced that Gore had won Florida, her husband explaining that they would have to wait another four years before retiring to Arizona.” (More on that here.)
Consider: If the Supreme Court were part of coup that makes a losing presidential candidate the winner, and makes that ruling along partisan and preferential lines that can’t be judicially defended, how could any decision issued by that court be deemed legitimate afterward?
Yet here we are, still publicly asserting the Court’s legitimacy, whatever people think privately, and still watching in horror as decision after decision dismantles old constitutional agreements and erects new ones.
The Legacy of Anthony Kennedy
Kennedy will be praised for his so-called “moderate” or “case-by-case” ideology, bolstered largely by decisions protecting gay rights. Perhaps that will be his legacy.
Continued...
