Althouse: Justice Kennedy: "I don't swing around the cases. They swing around me. My jurisprudence is quite consistent."

May 15, 2010

Justice Kennedy: "I don't swing around the cases. They swing around me. My jurisprudence is quite consistent."

Another funny thing he said yesterday: "An activist court is a court that makes a decision you don't like."

IN THE COMMENTS: Danielle says: "I can't imagine him not deciding that he is his own frame of reference. Didn't Souter say something similar about how the court moved to the right, not that he moved to the left?" I seem to remember Justice Stevens saying it too. And Justice O'Connor. Don't they all? It seems like laughable vanity, but it's also probably exactly what we think they should think: That they are playing it straight, doing it right, saying what the law is. It's probably somewhere on the continuum between laughable vanity and doing the right thing... pretty much like everything else we human beings do.

54 comments:

traditionalguy said...: Best line was, "If it's a new table, it's a new court". Kennedy has been enjoying being that 5th man that rules America.; 5/15/10, 11:21 AM
Unknown said...: Touche !

In other words, he tells the 24/7 media spinsters to suck it.

I cant imagine him not deciding that he is his own frame of reference. Didnt Souter say something similar about how the court moved to the right, not that he moved to the left ?; 5/15/10, 11:47 AM
Big Mike said...: An activist court is a court that makes a decision you don't like.

That's not necessarily true. There are an awful lot of us non-lawyers who think that too many judges decide what the result should be, and only then twist the law to fit. One reason why Roe v Wade ignited a firestorm that still hasn't gone out is that the ruling, at least as synopsized for the laity, read like a pretty complex law. And if a judge wants to write a law, he or she should resign their position and stand for election.; 5/15/10, 11:57 AM
Wince said...: I don't swing around the cases. They swing around me. My jurisprudence is quite consistent.

Maybe, just maybe, Justice Kennedy is secretly reacting to Althouse's prior post?

"I predict that it will soon and permanently become the norm for females to outnumber males on the Supreme Court."

A Swingin' Dick.; 5/15/10, 11:58 AM
Chase said...: "An activist court is a court that makes a decision you don't like."

Wrong. An activist court finds things in the Constitution that were never written into or intended to be written into the Constitution.

I know you law professors are smarter than us regular folk, but "Roe" is a piece of shit. Unintended consequences shit, maybe, but frankly and flatly indefensible, and the very definition of "activist". The activist court found what it wanted - even if it was the beginning of something bigger than they thought.

Overturning "roe" will not be "activist". I call bullshit on the redefiniton of words because people don't like their meanings. It's why liberals hate the term "liberal" and they change to "progressive". That's fair enough. But when liberals don't like the facts - commonly recognized meanings of words for instance -they always seek to change the definitions.

Examples of liberals lying with language:
• redefining "activist court"
• Democratic People's Republic of Korea (liberals LOVE that one for North Korea - and yes, communists are liberals.)
• racist: "Black people can't be racist"

Look law geniuses, if you want to defend the "Living Constitution" have it - just be honest, okay? I know it's difficult when the American people say over and over again that they don't want activist judges to win on the "Living Constitution". I read the articles by the brainy leftists who can't get their great minds around the fact that the American people can possibly be so unenlightened and deceived into wanting conservative Justices. But just be fucking honest. You lost on "activist" just like you did on "racist". Americans get it.

Make your case honestly or shut.the.fuck.up.

And by the way, Danielle, the Court is already slightly to the left of the American people judging from polls and decisions
, so the "Conservative Court" tag is really a misnomer.; 5/15/10, 12:00 PM
Bender said...: I don't swing around the cases. They swing around me.

Kennedy has long thought that the universe revolves around him.

That's the problem.

And he only compounds it by the fact that it is such an arbitrary self-centeredness, that in each case, he defines anew his "own concept of existence, of meaning, of the universe and of the mystery of human life."; 5/15/10, 12:11 PM
mariner said...: My opinions are to the right of most other Americans, but I know that and I'm willing to be honest about it.

Most leftists are sure that their well-to-the-left opinions are squarely in the center of American political thought.; 5/15/10, 12:16 PM
Ann Althouse said...: "And he only compounds it by the fact that it is such an arbitrary self-centeredness, that in each case, he defines anew his "own concept of existence, of meaning, of the universe and of the mystery of human life.""

But that quote -- from Planned Parenthood v. Casey -- means that *each* of us gets to be the center of our own universe. For the agents of govt power, like courts or legislature, this means that they are *less* central. It is a statement of governmental restraint out of respect for the individual's autonomy.; 5/15/10, 12:35 PM
paul a'barge said...: Didn't Souter say something similar about how the court moved to the right, not that he moved to the left?

Souter is a liar. Read the history behind his appointment. The man was a cipher and President 41 got suckered and we all have been paying the price.

No more ciphers. No more liberals.; 5/15/10, 12:48 PM
rhhardin said...: I'm eccentric.; 5/15/10, 12:50 PM
Bender said...: The sweet mystery of life passage is, in Kennedy's mind, especially applicable to him as a justice, as THE justice, and not merely as an individual.

It is the ultimate nonsensical and arbitrary statement of moral and legal relativism, that there is no "truth" and that we are each entitled to create our own truth. It is indeed liberating for a judge because it unhinges him from such inconveniences such as the Constitution and allows him to dictate from on high what the truth of the day is.; 5/15/10, 12:56 PM
Revenant said...: An activist court finds things in the Constitution that were never written into or intended to be written into the Constitution.

The problem with that definition is that *under* that definition we haven't had a non-activist Supreme Court justice in... well, ever? Maybe we had a few in the late 18th or early 19th centuries?; 5/15/10, 1:01 PM
themightypuck said...: It seems pretty incontrovertible that the court has moved right over the past couple of decades. There is no way Griswold or Roe would come out the same if decided today for the first time. Probably not Miranda either.; 5/15/10, 1:17 PM
Unknown said...: Ann Althouse said...

Another funny thing he said yesterday: "An activist court is a court that makes a decision you don't like."

There is some truth in that, not unlike Reagan's, "If the other guy is out of work, it's a recession, if you're out of work, it's a depression".

All the responses below flow from Ann's quote above.

Big Mike said...

That's not necessarily true. There are an awful lot of us non-lawyers who think that too many judges decide what the result should be, and only then twist the law to fit.

That's what makes the Tea Partiers so dangerous for the Establishment. They read the Constitution and want the law applied as it exists there, not cherry-picked from clauses and phrases to suit the moment, as Chase noted.

Chase said...

Wrong. An activist court finds things in the Constitution that were never written into or intended to be written into the Constitution.

Very true. The phrase 'made of whole cloth' could have been coined for the practice.

Revenant said...

The problem with that definition is that *under* that definition we haven't had a non-activist Supreme Court justice in... well, ever? Maybe we had a few in the late 18th or early 19th centuries?

Activism came in when John Marshall became Chief Justice. The original role of the Court wasn't that great and Marshall felt the post was beneath him, so he changed it.

And there's no reason it can't be changed back. But the people will have to do it - the courts and the politicians won't.

WV "repat" What you do when the tushie is firm and round.; 5/15/10, 1:33 PM
Fred4Pres said...: People do tend to react to decisions they do not like. Kennedy's reasoning is troublesome because he seems to use strange reasoning to get to where he is going.; 5/15/10, 1:40 PM
GMay said...: "It's why liberals hate the term "liberal" and they change to "progressive"."

Heh, call a socialist a socialist and watch 'em spin.; 5/15/10, 1:46 PM
Titus said...: I have a feeling Kennedy is going to swing his hog in favor of fags getting married which just about makes my stomach turn.

My husband and I had sex last night and this morning.

Thank you.; 5/15/10, 1:47 PM
GMay said...: "Most leftists are sure that their well-to-the-left opinions are squarely in the center of American political thought."

So true, so true. This perfectly describes Robert Cook (the commenter here).; 5/15/10, 1:49 PM
Titus said...: The question really is should Beauregard Jefford Sessions the III, who I absolutely odor, ask Kagan if she muches carpert?; 5/15/10, 1:54 PM
Titus said...: I want a tag Helen. I never get tags anymore and for that I am pissed.

I think Meadsy Poo is behind me no longer receiving tags

TAG NOW Bitch!

And I want it with flags and music and sparkles and bangles and in capital letters. And NEON too. Tasteful though, thanks doll.

Also, Madison needs to get over their Farmers Market. Really, it aint all that people.; 5/15/10, 2:02 PM
Titus said...: By the way slut the link you put isn't available.

Can you be a dove and fix it.

Thanks much.; 5/15/10, 2:04 PM
somefeller said...: Activism came in when John Marshall became Chief Justice. The original role of the Court wasn't that great and Marshall felt the post was beneath him, so he changed it. And there's no reason it can't be changed back. But the people will have to do it - the courts and the politicians won't.

So you want judicial review (and the corresponding two centuries or so of jurisprudence relating to it) to disappear? Good luck with that.; 5/15/10, 2:34 PM
Joe M. said...: I know a man at my (conservative, Christian) university who is completing his PhD this year in Political Science, studying constitutional law in some regard. The thesis of his dissertation is that Kennedy is a principled and consistent Justice, in fact the most consistent on the Court.

Interesting.; 5/15/10, 2:35 PM
former law student said...: An activist court finds things in the Constitution that were never written into or intended to be written into the Constitution.

The Constitution limits government power, and thus encroachment on individual liberty. Planned Parenthood v. Casey delineates the balance between the pregnant woman's liberty and the infant's right to exist (couched as the state's interest in the welfare of its citizens). The balance changes during pregnancy, putting the infant's welfare ahead of the mother's autonomy at "viability."

A question touched on in the comments is how can Republican Presidents nominate liberal justices?

I would say from my own experience is that steady exposure to conservative ideas and arguments will drive one inexorably to the left; 5/15/10, 2:47 PM
former law student said...: There are an awful lot of us non-lawyers who think that too many judges decide what the result should be, and only then twist the law to fit.

I was shocked when Scalia downgraded the right to Free Exercise of Religion to be non-fundamental, deciding that all the previous court holdings involved "hybrid" rights.; 5/15/10, 2:50 PM
former law student said...: if you want to defend the "Living Constitution" have it - just be honest, okay?

Citizens United put the last nail in the coffin holding the idea that conservative justices followed the original meaning of the Constitution. The doctrine of separate legal personality for corporations was still a century in the future when the First Amendment was added to the Constitution. Citizens went beyond the facts of the case to extend human rights to non-human entities.; 5/15/10, 2:54 PM
Unknown said...: somefeller said...

Activism came in when John Marshall became Chief Justice. The original role of the Court wasn't that great and Marshall felt the post was beneath him, so he changed it. And there's no reason it can't be changed back. But the people will have to do it - the courts and the politicians won't.

So you want judicial review (and the corresponding two centuries or so of jurisprudence relating to it) to disappear? Good luck with that.

The big problem with judicial review is that you have to get through so many Dred Scotts and Plessy v. Fergusons to get to the occasional Brown v. Board of Education (which, of course, was necessitated by Plessy).

You clearly missed - or ignored - "But the people will have to do it - the courts and the politicians won't.". A lot of people are reading the Constitution and asking a lot of pertinent questions about why some parts are ignored and some favored. If the country goes Weimar Republic, I think a lot of things are going to change, to the chagrin of the Lefties, including that.; 5/15/10, 3:31 PM
Bender said...: The big problem with judicial review is that you have to get through so many Dred Scotts and Plessy v. Fergusons to get to the occasional Brown v. Board of Education

But even then they merely engaged in more of the problem. Although the Court arrived at the proper outcome in Brown, it was grievously and insultingly poorly reasoned.

Rather than merely ruling that the Constitution is colorblind, and that government therefore has no business making racial distinctions, as the Court should have, Warren, et al. grounded Brown in the odious idea that black kids can't learn unless they are surrounded by white kids. Rather than healing the nation of racism, the racialist reasoning of Brown merely perpetuates it.; 5/15/10, 4:20 PM
Calypso Facto said...: An activist court is... a court that bases ANY decision on a penumbra.

What part of Madison's "The powers delegated by the proposed Constitution to the federal government are few and defined" don't you understand?; 5/15/10, 4:22 PM
GMay said...: "I would say from my own experience is that steady exposure to conservative ideas and arguments will drive one inexorably to the left."

Something about being a liberal at 40 indicating lack of a brain comes to mind.

Reminds me of a 30 y/o woman I dated long ago who was an Internist. She was struggling but failing mightily to run her own pactice. She was a flaming libtard if ever I saw one and it was almost hysterical to watch her grasp the reality of the world and people outside of her apparent indoctrination. At one point she was horrified to realize she was "thinking and speaking like a Republican".

Logic and reality woke her up damn quick.; 5/15/10, 4:40 PM
Chase said...: Citizens went beyond the facts of the case to extend human rights to non-human entities.

No, the Court rightly decided that any group of humans (pacs, political parties, unions, and even - gasp- gatherings of humans such as corporations) have the right to free speech.

I know I'm not as smart as law students, but that seems pretty straightforward to me.

of course, I don't wake up every day believing that all large organizations that are making a profit are intrinsically evil.

If you don't like the fact that some people can pay for more outlets for free speech than you, then persuade more of your like-minded compadres to put their money where their mouths are.

And stop believing in the mass stupidity of the American people. Actually, start from that point.; 5/15/10, 4:57 PM
somefeller said...: A lot of people are reading the Constitution and asking a lot of pertinent questions about why some parts are ignored and some favored. If the country goes Weimar Republic, I think a lot of things are going to change, to the chagrin of the Lefties, including that.

Ah, so your plan is predicated on the United States falling into major social unrest, with political street violence aplenty, which will lead to radical social and political change of a right-wing variety. Duly noted.; 5/15/10, 4:59 PM
Revenant said...: The big problem with judicial review is that you have to get through so many Dred Scotts and Plessy v. Fergusons to get to the occasional Brown v. Board of Education

Er... what?

Dred Scott was a decision about whether or not black people were protected by the Constitution. It wasn't an exercise of judicial review, because Congress hadn't even passed a law on the topic yet (it was too controversial). So even if the Court didn't have the power of judicial review, Dred Scott would still have happened.

Plessy vs. Fergusson was an example of judicial review... in which the Court upheld the law. If the Court didn't have the power of judicial review, the law would have been upheld automatically. So, again, stripping the court of the power of judicial review wouldn't have helped.

In fact, of the three cases, the only one which would NOT have come to pass if it wasn't for judicial review is... Brown v. Board of Education. I.e., the one case out of the three whose outcome we as a society approve of.; 5/15/10, 4:59 PM
former law student said...: the Court rightly decided that any group of humans

A corporation has a separate legal personality from the humans who own it, manage it, or direct it. Does IBM speak for you?; 5/15/10, 5:33 PM
Unknown said...: somefeller said...

A lot of people are reading the Constitution and asking a lot of pertinent questions about why some parts are ignored and some favored. If the country goes Weimar Republic, I think a lot of things are going to change, to the chagrin of the Lefties, including that.

Ah, so your plan is predicated on the United States falling into major social unrest, with political street violence aplenty, which will lead to radical social and political change of a right-wing variety. Duly noted.

At what point do I put forth a plan? All I do is note the disastrous state of affairs into which your side has gotten this country. As a good little apparachik, you don't want to hear about things like this - the Greek-style collapse of the US, but that doesn't make them any less a possibility, much less probability. I know you are wetting your pants calling me a Nazi under your breath, but at no time did I say anything about right wing, nor street violence - in fact, that's what your side of the aisle specializes in. But, if the state of affairs envisioned by the people in the link comes to pass, a lot of people are going to want some major changes in the country and I don't believe they'll be the Hopey kind.

Revenant said...

The big problem with judicial review is that you have to get through so many Dred Scotts and Plessy v. Fergusons to get to the occasional Brown v. Board of Education

Er... what?

Dred Scott was a decision about whether or not black people were protected by the Constitution. It wasn't an exercise of judicial review, because Congress hadn't even passed a law on the topic yet (it was too controversial).

The Northwest Ordinance and the Act of 1820 were put forth as making Scott a free man because they did not allow slavery in the Old Northwest or Louisiana Territories and Mr Justice Taney disagreed.; 5/15/10, 5:38 PM
somefeller said...: At what point do I put forth a plan? All I do is note the disastrous state of affairs into which your side has gotten this country. As a good little apparachik, you don't want to hear about things like this - the Greek-style collapse of the US, but that doesn't make them any less a possibility, much less probability. I know you are wetting your pants calling me a Nazi under your breath, but at no time did I say anything about right wing, nor street violence - in fact, that's what your side of the aisle specializes in. But, if the state of affairs envisioned by the people in the link comes to pass, a lot of people are going to want some major changes in the country and I don't believe they'll be the Hopey kind.

You are the one who used the Weimar Republic example, which is generally used to be an example of what I was talking about. If you didn't know that, read up a bit about Weimar and how it is generally cited as an example of a political state of affairs. If you did know that, don't try to backtrack when you were called on it. But yeah, I guess you don't have much of a plan.

And as far as wetting oneself and calling people Nazis goes, I'll leave that to you, since that seems to be what you are good at, based on the commentary of yours that I've seen. (But kudos for going this far in a comment thread without referring to Democrats or liberals as National Socialists!); 5/15/10, 5:54 PM
EnigmatiCore said...: Souter and Stevens were right in that the courts did move right during their tenure.

And, those two did not really change much, that I could see, from when they were first confirmed to the SCOTUS.

Souter, however, changed drastically from how he had been prior to being nominated.

As for Kennedy, I think his jurisprudence has been a heck of a lot more consistent than people think, and certainly more consistent than Justice O'Connor's.; 5/15/10, 6:14 PM
Kirby Olson said...: I think the court kind of stinks and that instead America should VOTE on major legal questions. The members of the court don't really know more than we do.

The issues should go up on a ballot, and the people should decide them. The supreme court has too much power over the rest of us.

We should get rid of the whole court system, and have people vote instead.; 5/15/10, 6:30 PM
Alex said...: The fact is that we all are the "centers of our own universe", unless you live in North Korea then you revolve around the perverted pajama psychopath.; 5/15/10, 6:32 PM
Chase said...: A corporation has a separate legal personality from the humans who own it, manage it, or direct it. Does IBM speak for you?

A Political Party has a separate legal personality from the humans who run it. Does the Republican National Committee speak for you?; 5/15/10, 7:11 PM
rcocean said...: Who needs Democracy when you have "Drama Queen Kennedy" deciding whether we can vote on Abortion or whether Gay Marriage is legal or not?; 5/15/10, 7:29 PM
Unknown said...: somefeller said...

You are the one who used the Weimar Republic example, which is generally used to be an example of what I was talking about. If you didn't know that, read up a bit about Weimar and how it is generally cited as an example of a political state of affairs. If you did know that, don't try to backtrack when you were called on it. But yeah, I guess you don't have much of a plan.

You mean nobody ever in history referred to the economic morass that was Weimar before little me? Get a life. You're the one who's weaseling and we both know it.

Again, you mentioned a plan, all I mentioned was a state of affairs that you prefer to ignore, but, again, it's your side acting like the street brawlers, if you want to raise the political issue.

PS When I say National Socialists, I refer to people in the administration and Congress, as well as those not in either. Not all Democrats today are National Socialists, it just seems like it, given the way so many of them want to take over private enterprise.; 5/15/10, 7:41 PM
John Thacker said...: Speaking of Reagan, it's not that different from Reagan's "I didn't leave the Democratic Party, the Democratic Part left me."; 5/15/10, 11:35 PM
former law student said...: A Political Party has a separate legal personality from the humans who run it.

Nope. Political parties are not corporations, they are not even really associations. Anybody can start calling himself a Republican (witness Whitman and Fiorina in California) and no one can dispute their claim.; 5/16/10, 12:57 AM
Chase said...: Sorry, fls, but Political parties are also considered legal personalities. I checked earlier today with our county's District Attorney - and he's a Democrat, by the way.

You are missing the point - the question is why?

A corporation is a group of people who can have freedom of speech just like everyone else. That's what this really comes down to.

Your fear of corporations having free speech rights must be motivated by the belief that:

a) Americans are so stupid that they cannot possibly see past better funded ads - oooh, it's in COLOR, uh huh!

b) Americans are too stupid to get past a multitude of repetitious ads - saying it over and over makes it so. I can understand your belief in that one, as that is a basic cornerstone of liberal/socialist orthodoxy.

c) something is inherently evil in corporations. And that is, frankly, a sick worldview. You have far more to fear from government - any government - than you do from corporations. Now, now, before you go off the deep end and say something disingenuous (your cup of tea here - the false choice), it certainly is possible that bad people - and even evil people - can be involved in corporations. But that doesn't make the majority of corporate entities bad. There is more power in a county sheriff in the middle of the smallest county in America to do you harm. Those are the people you had better pray know how to use power correctly and beneficently.

So, I guess if it to you it's none of the above, we're all just a bit confused by your hatred of corporate commerce in the United States.; 5/16/10, 2:23 AM
Saint Croix said...: He ought to read Casey and Carhart, back to back.; 5/16/10, 3:59 AM
Roger J. said...: Three things would change american politics: repeal of the 17th and 18th amendments, and overturning the precedent established in Marbury v Madison. None of these will happen, however. Too many people in power rely on them for the contiuance in power.; 5/16/10, 7:36 AM
Saint Croix said...: The doctrine of separate legal personality for corporations was still a century in the future when the First Amendment was added to the Constitution. Citizens went beyond the facts of the case to extend human rights to non-human entities.

The New York Times is a non-human entity. The Washington Post is a non-human entity. Fox, MSNBC, 60 Minutes, Time, Newsweek, all non-human entities. Google is a non-human entity. Yahoo, AOL, The Associate Press, The New Republic, The National Review, and Rolling Stone are all non-human entities. Television, movies, books, newspapers, and the internet--all of our modern media--are brought to you by non-human entities. May all these things be censored by the federal government?; 5/16/10, 9:12 AM
former law student said...: I checked earlier today with our county's District Attorney

And this is relevant because he's going to prosecute the Republican Party?

Good deal

But do try to get a business structure lawyer to opine next time.; 5/16/10, 10:01 AM
former law student said...: The New York Times is a non-human entity.

Controlled by the Sulzberger family.

The Washington Post is a non-human entity.

Controlled by the Graham family.

Fox,

Controlled by Rupert Murdoch

Despite their corporate forms, the organs of the various media families pretty clearly speak for them -- else their publishers would change their messages or at least the messengers.

Let's look at the media corporations not controlled by families or individuals. Do the NBC networks carry the GE corporate party line? No.; 5/16/10, 10:09 AM
former law student said...: A corporation is a group of people who can have freedom of speech just like everyone else. That's what this really comes down to.

Good. Let the feds seize the assets of all BP shareholders to clean up the oil spill, because corporations are just acting in the name of their shareholders.; 5/16/10, 10:15 AM
John Thacker said...: Despite their corporate forms, the organs of the various media families pretty clearly speak for them -- else their publishers would change their messages or at least the messengers.

Let's look at the media corporations not controlled by families or individuals. Do the NBC networks carry the GE corporate party line? No.

So you've conclusively proven that the corporate form is the primary way for large numbers of people to pool their resources to accomplish something that they would not be able to do otherwise. In the absence of corporations, you would strengthen the very wealthy.; 5/16/10, 11:08 AM
Chase said...: Seriously fls - what is your point?

Why shouldn't corporations be able to use their funds for free speech?

The New York Times is publicly owned though controlled by the Sulzbergers. Yet do not condone their free speech being restricted. Why GE's?

Sorry, I cannot follow your logic.; 5/16/10, 11:57 AM
Chase said...: because corporations are just acting in the name of their shareholders.

Duh.

Again - be straight up. Why is "Citizens" a problem? What harm will come to this nation because of it?

Straight up this time.; 5/16/10, 12:00 PM