Anthony Kennedy and Our Delayed Constitutional Crisis

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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 and Facebook. GP article archive  here. Originally published at DownWithTyranny

Image credit: Mike Thompson / Detroit Free Press

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

Each of these points is critical in evaluating the modern Supreme Court. For two generations, it has made decisions that changed the constitution for the worse. (Small “c” on constitution to indicate the original written document, plus its amendments, plus the sum of all unwritten agreements and court decisions that determine how those documents are to be interpreted).

These horrible decisions are easy to list. They expanded the earlier decision on corporate personhood by enshrining money as political speech in 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 reported that 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.

But in the main he has been horrible, a record of ideological and indefensible votes capped by his landmark decision in the Citizens United case. Enough has been written about that to make repetition here unnecessary. As noted, Kennedy not only provided the crucial “swing vote,” he also wrote the majority opinion, which in essence, reduced the broad and complex sweep of both public corruption and the appearance of corruption only to provable, documented, evidence-based quid pro quo exchanges. This is beyond naïve and touches itself the broader meaning of corrupt.

If justice exists in the world, his legacy will be this: First, in giving to Donald Trump the ability to hand a person of relative youth the fifth and deciding Republican vote on the Court, Kennedy has changed the Court for a generation. After his successor is confirmed, no good thing will come from the Court for the next 20 years, and much, perhaps fatal, damage will be done.

Second, thanks to Kennedy’s handing his seat to Trump, the next new justice will be unable to claim the propagandistic “swing vote” mantle held by O’Connor and Kennedy, which fact should destroy the Court’s perceived, illusory legitimacy forever. The full consequences of loss of legitimacy will be considered elsewhere, but suffice it to say that when a nation’s highest court is not just captured, but widely seen to be captured, a constitutional crisis is at hand. 

This is the legacy Justice Anthony Kennedy, and though he may bask for the next few months in the glory of his pronounced moderation, the awful truth, to his enduring shame, should follow him to the grave — and be printed on it.

The Crisis to Come

Let’s close by quoting Anthony Kennedy in the Citizens United case, the most bizarre defense of a decision in the modern era. (There have been many bizarre decisions — the “money is speech” decision in Buckley v. Valeo is among the worst in the last 50 years, but none has been as bizarrely defended by the Court as Citizens United.)

Remember that in Citizens United the Court, building on the decision in Buckley, ruled that the First Amendment prohibits Congress from passing any law limiting so-called “independent expenditures” by corporations and unions to political campaigns. (Of course, those independent expenditures are almost never independent at all, but that’s another problem.)

To the objection that unlimited campaign contributions would foster widespread public corruption, Kennedy countered with this absurdity (quote taken from Jonathan Cohn here). In his majority opinion, Kennedy wrote:

[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. …

The fact that speakers [i.e., donors] may have influence over or access to elected officials does not mean that these officials are corrupt. …

The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.

Each assertion above strains belief that the writer is sane. Consider those assertions in simpler language:

  1. Gifts of money do not corrupt.
  2. Gifts of money don’t look corrupt.
  3. Influence over politicians does not corrupt.
  4. Voters will have no problem with nakedly bought elections.

The first three are either plain nonsense, in which case Kennedy is unqualified to sit on the bench at all, or nonsense in service of ideology, in which case Kennedy is a political actor on an already captured Court.

The obvious explanation is the latter.

But the worse of his assertions may be the fourth, which is also patently wrong. That assertion, which says in effect “and people will let us get away with all these changes,” has set the final table for the constitutional crisis to come — the one that questions the legitimacy of the Court itself and with it, perhaps, our entire political process.

That crisis, if it comes, will threaten the national fabric as fundamentally as any of the earlier three — the crisis of 1776, the crisis of 1860, and the Great Depression. We’re now much closer to that point than anyone with a microphone or media column inches will say. But you did hear it here. Stay tuned.

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  1. Nell

    Wow. I think the writer is correct. Society is afterall people connected by trust. Trust has already been eroded by the infection of economic’s rational choice theory of human behaviour. To lose trust in the law would be a powerful loss, I think. And you guys have guns.

    1. Ignacio

      “To lose trust …”

      I can’t remember how many times I have read that trust is the basis for social cohesion. Remember that trust is an emotion and if broken can lead to destructive behaviours.

      “And you guys have guns”

      Oh, you are well aware!

      1. MK

        “Elections have consequences, and at the end of the day, I won.” – President Obama 2009

        Too bad he didn’t name Merrick Garland as a recess appointment. But, I’m sure he thought Hillary would appoint him – or maybe even someone more liberal.

        Now, Trump’s election has consequences neither of them ever expected.

        1. a different chris

          >or maybe even someone more liberal.

          Um, have you actually heard anything about Hillary Clinton? :)

        2. oh

          I don’t for a moment believe that Merrick Garland would have been any better than anyone Trump appoints. Obama was a Repig in DImrat clothing and he let the country down to benefit himself.

          The Supreme Court has been a sham court for over 40 years and anyone who wishes laws to be decided as constitutional or not better start working on getting us to become a true democracy where candidates are not chosen by the two corporate bought and paid for parties who incidentally, have done nothing to change the Citizens United travesty of a decision.

          I wonder when people are going to be outraged?

        3. lyman alpha blob

          Too bad he didn’t name Merrick Garland as a recess appointment.

          Too bad he couldn’t come up with an actual lefty to nominate, but what do you expect from someone who spent 8 years telling us how much he loved Ronald Reagan?

          1. Schmoe

            That was discussed at the time and I am fairly certain that doing so was not an option since the Senate always stayed in session via a BS procedural maneuver by Republicans.

    2. RMO

      Trust is important. A society or nation is in many ways a shared idea (or illusion) and when people stop believing in it things can fall apart very quickly and in quite nasty ways. This would be even more serious than a constitutional crisis, it would bring forth the danger of the complete collapse of the nation itself.

  2. The Rev Kev

    Been looking askew at the US Supreme Court for quite a long time based on an article that I read some ten, fifteen years ago. It was talking about Justice Antonin Scalia and what really struck me was that he basically had his own fan club and I mean a fair dinkum fan club. I thought at the time that this is not how it should be with a supposedly impartial Supreme Court Justices – they should be reserved and impartial.
    Then it got worse. From that article it mention that he was a member of some conservative organization and then I knew that this was real trouble. If you are a Justice, you should resign any memberships in all organizations to preserve your impartiality. Ceasar’s wife and all that. I agree with the author. There are going to be bad times ahead and the Supreme Court is going to be at the center of it.

    1. pretzelattack

      probably the federalist society, a very influential fanatically conservative organization.

      1. gearandgrit

        The same federalist society that help create the list of potential SCOTUS nominees which Trump now presents as his own.

    2. Richard Kline

      The Court’s ‘Black Term’ ending this past June only confirmed that we already ARE in a constitutional crisis, and have so been since Spring, 2016 when the Republic Senate refused to provide hearings and a vote for Obama’s nominee. Leaving aside the misery that was Barack Obama, their action was an overt conspiracy to pack a partisan Supreme Court. The blatantly partisan nomination of Gorsuch was only dust to the mire that was the tremendously undemocratic forcing of his confirmation vote against all precedent.

      This past term, the Court invented non-Constitutional powers of sweeping and dangerous breadth in upholding Trump’s Muslim ban, a a wrongly decided ruling violently against forty years of precedent and easily the worst since by the Court since the 1940s. The Court was handed a superb opportunity for a landmark ruling on democratic process in voting with regard to two gerrymandering—and refused to rule. Obvious rulings in lower courts paved the way, but Republicans would have been manifestly hurt in the present circumstances; reason enough for The Bought Five. Nothing could be more partisan and less ‘divided’ than that consequential non-decision. The ruling on eviscerating union fees has been coming for decades, and, to me, constitutes Kenned’s “Fuck you all, goodnight” on his way out the door; his best display of what he really thinks of the non-elite. A terrible, terrible, term, with clearly more intended to come.

      From where I stand, the Five on the Right have violated their oaths of office. They scream iron precedent while inventing broad new powers for conservative nexi of power and wealth. What to do about them is a complicated question, but it is not in question that we are well on the wrong side of a crisis, and it is a ‘soft coup by quill’ that is attempting to put us there. The rulings by this cabal have little basis in precedent, and are violently against the change in public opinion and expectation in the majority of the country’s population of the last two generations. 5-4 is NOT a mandate, it isn’t even a democratic process, especially when that number is produced by effectively corrupt means.

      I do know that an attempt at a ‘coup from above’ by conservative ideologues will fail—because it has every time it has been pursued to this level and beyond in Anglo-American history. It is worth remembering, and indeed worth thinking on seriously on this Independence Day, that ALL the revolutions in Anglo-American history have been ‘liberal revolutions’ against radical conservative corrupt process and overreach; in 1642, 1689, 1776, and in practical terms in 1860. To my reading of pattern in history, one such was imminent c. 1900 but the ruling class wisely gave ground. That instance wasn’t from any love of democracy on their part, be it said, but in order to get the structural changes that they wanted themselves such as a real tax structure for the Federal Government and the Federal Reserve system to prop up their banks while insulating control of the money supply from the Congress. ‘Liberal’ revolution is a move by the middle to protect their own money; any advance in democracy is in many respects incidental. The larger point is that the liberals have won every revolution in our tradition, and have been pushed to such acts by exactly the grossly manipulative, corrupt, and minority conservative overreach we now experience.

      We are in a crisis that will end with the elite ushering in reform to escape revolution, or another liberal revolution. Personally, I’d prefer a more radical transformation, but I’ll take the revolution I can get. And to that end, my words to the Bought Five on the Court are these: “Keep on pushing boys, cause it’s your cart and your tokhus that is going to go over.” We won’t be putting up with a sentence of fifteen-to-life from the likes of you. Here’s to the next Glorious Revolution, and the better the sooner.

  3. J.Frie

    It was always my perception that Kennedy was using his social votes like Marriage Equality as a cover to distract the media/country from the looting he was promoting by business and the wealthy. The court was definitively captured by 2000 as evidenced by O’Connor’s widely reported reaction to the election night results and the votes in Bush v Gore.

    Now it is time for the progressives to pack the court with new progressive justices as soon as possible and end the capture.

    1. Fiery Hunt

      You do realize that “packing the court with progressives” is the other side of the same coin of a captured court and hense corruption, right?

      1. jsn

        That would depend on the constituency of the elected progressives who implemented such a policy. If it’s the Dollar Dems, you’re absolutely correct. If it’s popularly elected candidates who ran without corporate cash, it would be a different matter: legitimacy originates in the connection of power to popular will.

        The guillotine is another solution, but political tabula rasa’s tend to be lakes of blood.

      2. quidam

        You do realize we are speaking of human being right? People who come from different backgrounds and evolved in different environments. Nobody is neutral, you can pretend to be neutral but in the end you will never be unless you are a robot.

      3. dsalaw

        Of course packing the Court with progressives is the opposite side. Time for the many to fight back. You cannot have the few spearheaded by anti-democratic billionaires seriously fighting for their agenda while the other side is represented by nice fairly contented gentlemen like Obama.

    2. Other JL

      You’ve just described the Democratic party, since at least the Bill Clinton era. That’s the whole reason for identity politics: provide some reason for at least some of the electorate to vote blue despite their participation in class warfare and looting.

  4. Disturbed Voter

    The Girondists didn’t go far enough, the Jacobin Club needs to step in and achieve real liberation … from sanity.

    Both US main parties want to end the status quo, and to do that, they have to terminate the current misrule of law, for total, if temporary suspension. You can’t build a dystopia without breaking a few eggs.

    1. Amfortas the Hippie

      I don’t think that either of them want and end to status quo, they want more of it. Ever since Bill Clinton stole the saner sounding parts of the GOP Platform, the latter has had nowhere to go but crazy…and away they went. meanwhile, the Vichy Dems went ahead and implemented the moderate republican wish list. Everybody was looking at Newt, and the blowjob and all the rest, and being told “we must defend Our Guy from the barbarians”.
      And so the Blue Hordes were given a task…and took their eye off things like Graham-Leach-Bliley and Nafta and Telecom Bill.
      All the descendants of the Business Coup had had to do all along was buy both parties.
      That says Continuity to those who matter in this world.
      Turns out the Dem Base is just as easily fooled/led as that of the gop.
      Now…whether or not Reality will allow the More Status Quo thing to continue is still in question.
      I have my doubts,lol. and like so many commenters above, I expect Doom, warlordism and chaos.(prediction: neoreactionary mega corps stepping into the void as modern analogs of lords of the manor.)
      The American Empire was gonna end at some point, anyway.
      It was never going to be pretty.

  5. dbk

    This was excellent, thanks – concise, clear, comprehensible. I have a close friend (retired lawyer) whose hobby has long been following SCOTUS decisions. Her view is the same as Gaius Publius’s, only considerably harsher.

    I don’t know that this can be solved – realistically, it can’t in the near term. When the Federalist Society and American Heritage Foundation are drawing up the list of SCOTUS candidates, you can’t pretend the process is “non-partisan.” Given that the president wants someone young (40’s) as his appointee, decisions will be skewed for at least two generations – one generation to undo much of the fabric of the New Deal / 1960s and another to correct for rulings between 2018 and 2050. That’s a long timeline.

    Each ruling henceforth will be predictable; the only thing experts will be uncertain about will be the exact wording of any given decision – just consider Janus v. AFSCME, where people were certain what the decision would be and how the votes would fall. Labor writers had prepared their responses months in advance.

  6. Skip in DC

    Great rundown on that world-class phony and on the con-artistry of the swing that lulls the pitchforks. Hot button misdirection.

    Kennedy’s speech fantasy has already accelerated a crisis in confidence for little guys giving up on a square deal in state courts.

    His destruction in this arena is largely overlooked, but Citizens United was an accelerant moving many state judges, including judges on state supreme courts, to soak up campaign contributions with a winking grab rivaling Congressmen. State courts, where the vast majority of people encounter the legal system, are often the initial farm teams for Federal courts. As these judges get appointed to the Federal bench they’ve already been massaged by contributions weighted to corporations and their lawyers. Sooner or later the gaming tables are tilted, fewer people and small businesses even dare play the game, and cumulative court decisions speed the wealth gap.

    A U.S. Supreme Court justice discussed the loss of confidence in the courts in a 1999 interview on Frontline: “We weren’t talking about this 30 years ago because we didn’t have money in elections. Money in elections presents us with a tremendous challenge, a tremendous problem, and we are remiss if we don’t at once address it and correct it…if an attorney gives money to a judge with the expectation that the judge will rule…in his client’s interest…. It’s corrosive of judicial independence.”

    If you like a good joke, the justice who said that was Kennedy.

    The farce was complete when Neil Gorsuch feigned under oath he had no idea who was behind the ten million plus in dark money that sought to put him on the high court.

    That alone should have gotten him bounced by any Senator that could rub two neurons together and wasn’t stuffed in the pocket of such collaborative dark money. I guess that’s a shrinking pool.

    Meanwhile angels dancing on pins contemplate which comes first, the quid or the quo.

  7. remmer

    Kennedy wasn’t the swing vote in Citizens United. The position he took in that case — that corporations have First Amendment rights of political speech — is one he had been taking since the dissent he wrote with Scalia and O’Connor in Austin v. Michigan Chamber of Commerce (1990). The point of Citizens United was to overturn Austin, so there was no doubt how Kennedy was going to vote.

  8. dcrane

    The 2016 decision to vacate the corruption conviction of VA governor McConnell could be listed as well. It was 8-0, but it functions as the other bookend with Citizens as far as enabling corruption is concerned.

    1. johnnygl

      Thanks for pointing that one out. It was an excellent demonstration of a rogue, unaccountable court that would unanimously overturn a lower court decision because corruption is just too awesome to stop!!!

      1. dcrane

        That seems about right. I haven’t read the decision, but at the time the reasoning came across in the media as “but we can’t convict McDonnell this way or else we’d have to convict so many other people in government”.

  9. Eureka Springs

    I think it’s a bit myopic to pin so much on Trump here. These problems are systemic. No Democrat or Republican in my lifetime has conducted anything close to an open, transparent process in selecting judicial nominees of any level. They rarely ask good questions, are even less likely to demand a coherent answer for dawGs sake.

    They all speak in tongues, riddles, obfuscation on these matters. There is nothing binding (like say a binding party/constitutional platform) them to judicial criteria, except the same owners, societies, think tanks etc. So for all but a very few this is a crapp shoot, by intent and design. Trump wont give a mearde about this as long as he thinks the pick is good for business, more carnival barking and perhaps a relatively easy process as far as his ‘attention’ needs are concerned. And I can’t say I blame him. An HRC, Obamney, Bush wouldn’t be any different, sans the barking style.

    Dems fought like crazy against Bork, so they could fight FOR Kennedy and present themselves as champions. If anything has changed it is worse now than then.

    We can all select time of the begining of the constitutional crisis, highglighting horrific points, but it was long before Bush vs Gore.

    The day (what, over two hundred years ago?) propagandists convinced themselves and enough citizens we live in some kind of democracy would be my choice.

    1. Jim Haygood

      Anthony Kennedy’s vapid, jaded observation in 2012 that “Criminal justice today is for the most part a system of pleas, not a system of trials” should be engraved on his headstone, with an upside-down US flag below it.

      1. JTMcPhee

        Kennedy’s observation has been true since long before I graduated from law school in 1976. I recall, e.g., a LIFE Magazine article on a NYC public defender named I think Martin Erdman, who loved his role as an expert at getting felons off serious charges with nol pros free passes from overworked and resume-padding prosecutors, or just for time served in Rikers or other jails. Murder and mayhem charges, pled down or dismissed because Erdman made a lot of motions and would happily force cases to trial. He also told a lot of uncomfortable truths about judicial corruption and incompetence, as I recall, including one case where the rotten drunken scion of a fellow judge was let completely off for killing an entire family in a head-on wrong-way high speed crash on the Hudson River Parkway — “got off on a technicality,” as the saying goes.

        His rationalization for being so successful at getting really bad people back on the street was a hint of the Fifth, Sixth and Fourteenth Amendments, mixed with lots of chutzpah and the clear evidence that “the legal system” was an irretrievably broken fraud and he saw it as his duty to accelerate its collapse under the weight of its own corruption and hypocrisy.

        A look back, via the estimable NYT, at Erdman: I haven’t been able to find the original LIFE article…

  10. Steve Ruis

    Oh, and when trust is lost, it takes a very long … long … time to rebuilt it, assuming that anyone actually works to rebuild that trust. The big problem is the “Big Problem” of civilization. Since it’s inception, civilization has taken the form of the coercion of the masses labor to benefit the religious and secular elites. Obviously there have been ebbs and flows in this but this still stands as the hallmark of civilization (not just capitalism). No religion or economic system will thrive for long if it does not serve this interest. Our current system, in the U.S., has just given up the pretense that the bought and paid for political actors acting on the elite’s behalf are “public servants.”

  11. Ford Prefect

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.”

    At least now with another Trump appointee we will be able to get back to the original meaning of the original text based on literal interpretations of what the writers meant. It was clear that women were not included in the “equal” part and the next justice will be able to return constitutional rights back to the appropriate original state, unlike the travesties of the activist courts like the Warren Court coming up with things like Brown vs Board of Education.

    “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” – clearly regulate does not imply regulating things like political power, just things like how to collect maximum political contributions.


    1. Carla

      “We hold these truths” etc. — you’re quoting the Declaration of Independence, not the Constitution. The Supremes “interpret” the latter, not the former.

  12. James E Keenan

    A good analysis. However, the frequent use of the passive voice — “is captured” … “has been captured” — begs the question: Who is doing the capturing?

    1. Jim Thomson

      Easy answer.
      Follow the money.
      That’s the theme of this article and many of the comments.

  13. perpetualWARPa

    Anybody who has entered the courts through litigation knows the court will rule almost exclusively for those with the most money.

  14. Carolinian

    If Bush v Gore–where the SC literally picked our president–didn’t provoke a “Constitutional crisis” then why would one think a conservative and even partisan Republican majority would do so? Surely a far greater threat to democracy is our oh so unrepresentative Congress. To be sure the “money is speech” rulings had something to do with this but there are many other moving parts including corrupt political parties and our shallow news media. Perhaps the left needs more plan and less panic.When the right objected to Roe v Wade they got mad but they also got even with the results we see.

    1. readerOfTeaLeaves

      Respectfully disagree.
      The right intended to ‘get even’, while in fact they shot themselves in both feet, due to their erosion of trust, credibility, and legitimacy.

      The Federalist Society got their acolytes onto the courts, one by one by one. Unfortunately, the strict interpretation they brought to the courts means that they’re probably the last people in America to see the writing on the wall about the constitutional crisis that is slowly unfolding — and for which they are partly culpable.

      The Federalists seem like a bunch of earnest, ambitious law nerds who have a tragically narrow, legalistic view of the world. The genius of America, if we have one, is the practical nature of so many citizens. Strict constitutionalism is antithetical to the practical temperament of most citizens.

      The legitimacy of the president has been eroded by Gore v Bush, Citizens United, dark money, and the Electoral College. SCOTUS sanctified all of this.

      The legitimacy of the senate has been eroded by Citizens United, dark money, archaic rules, and demographic trends: the population of California grew to about 36,000,000 while the population of Wyoming hit around 700,000. When one resident of Wyoming has as much ‘federal representation’ as 36 Californians, the idea of ‘democracy’ (one person, one vote) is in need of a very large fig leaf.

      The Federalist pontifications on Citizens United were an effort to protect the status quo by pretending that ‘equality’ could be ensured via money: a transactional ‘equality’ that is a legalistic fig leaf, as if to say, ‘see, everyone matters because a dollar = a dollar = a dollar and so speech = speech = speech. That seeks to pretend ‘we’re all equal — or at least our money is’, while ignoring deeper, systemic, structural inequalities.

      And now we have the specter of a president whose campaign associates appear have committed treachery in order to get him elected. Thus, a deeply compromised POTUS, is nominating a person approved by the Federalists. By conniving with the POTUS, the Federalists reveal that their main goal is power, not legitimacy, not integrity, and certainly not justice.

      These Federalists, with their minds dripping with legalese, making fine distinctions on matters of jurisprudence that have no discernible testing in the real world, are just dumb enough to accept an appointment that a person of more discretion, to say nothing of more integrity, would decline.

      Much more ‘winning’ by these folks, and they’ll find themselves mocked, reviled, and despised.
      Also, footless.

  15. Enquiring Mind

    Due process concerns run amok, with anyone and everyone claiming this or that right, without attendant responsibilities. That is a legacy of the handiwork of one Martin Redish.

    Once you have trotted through that brief Wikipedia publicity, then go to your local library to check out Tailspin, by Steven Brill. That includes dilation on the various issues spawned by one of Redish’s legal contributions.

    1. Carolinian

      go to your local library to check out Tailspin

      Just did!

      And surely the founders intended the “marketplace of ideas” version of free speech and not the Redish “self-realization” version. They were theorists of government, not self-realization and other analysand obsessions.

  16. alexis S.

    I haven’t heard anyone bring up what Roosevelt tried to do– expand the number of Supreme Court Justices. Maybe if we ever get a non-repub President and Congress, this idea well be revisited and we will be saved the complete horror of the next 30 years of these horrible people.

    1. Carolinian

      And then they will regain power and add still more SC justices. What fun!

      Perhaps one reason the SC was a lot more liberal back in the 60s was that the times were a lot more liberal. Back then all self respecting intellectuals were supposed to be liberals which is why Buckley started National Review and ladled on the intellectual pretensions. He considered this an act of revolt.

      The point being that lefties once again need a strong social movement and not to expect the Supremes to save them.

      1. Arizona Slim

        Times were a lot more liberal. That, in only six words, is the key point.

        And, in my not-so-humble opinion, lefties shouldn’t count on the Democrats as saviors. This is the ultimate DIY project, people. Let’s get to work on it.

      2. Patrick

        If a policy of diluting the power of the court becomes the norm, that probably won’t be a bad thing for liberals. As many have mentioned, it is effectively a bastion of conservatism.

    1. lyman alpha blob

      Please explain the logic behind your first point.

      Kennedy’s son worked at Deutsche Bank and was involved with some Trump financial deals. And…? Was there anything untoward with those banking arrangements or are you just operating on the notion of guilt by association because you don’t like Trump?

      But let’s suppose there was some wrongdoing there between Kennedy Jr, Sr, and Trump. Well Kennedy Sr just resigned. So doesn’t that imply that justice has been served? Why should a new Supreme Court nominee be punished for what the son of his predecessor did?

      What I’d really like to know is what makes so many Trump detractors completely lose their minds. (My guess is that it’s precisely because he continues the awful graft and warmongering of his predecessors but is boorish about it, thus blowing the cover of more “respectable” and revered politicians such as every non-thinking political hack’s hero, Barry O) If you want to get rid of the man, you’re going to need to do better than just flinging poo and hoping something sticks because that’s been tried for quite some time and it hasn’t even come close to working.

  17. gearandgrit

    The court became fully partisan some time ago. From the Jim Crow laws, to Bush vs. Gore, to Scalia fully participating in conservative circles and being lauded as the champion of the right, it’s all there. I remember my parents being nearly in tears watching Fox News when Scalia died lamenting the horror of Obama picking a justice, of course, they figured out a way to cheat their way out of that. The court will push further right under Trump and trust in it will continue to erode. Check and balances are dead.

    My true fear is that there is no conceivable way to fix this. Dems take control and pack the court? That’s extremely partisan and trust eroding in the opposite favor. There meat to the Russia stuff and Dems impeach Trump appointments? That will definitely build trust in the court.

    In short, we’re screwed.

    1. a different chris

      Hmm, not if they present it right (ok, who am I kidding, watch Joe Biden try to explain anything, but well it’s a blog comment) — go ahead and bump the number way, way up. Say 27 justices.

      1) It means you have a wider (I was going to say “wide”, but seriously: all these people come from, and all they will probably ever come from, the Ivy League) breadth of opinion on every issue. So Joe and Jim are on the same wing (right or left) as all get-out when it comes to religion but they find they have severely different views on cannabis. So Joe builds arguments with Karen and Jim builds counter-arguments with Omar on this subject. Sure, that also happens with 9 people but the degrees of freedom increase exponentially.

      2) Your – as a Justice – particular importance will have correspondingly, exponetially decreased. So now why sit there for 20, 30 years? The majority will be refreshed.

      3) Now you – as the political party driving this – can claim you have created a much more “stable” court. Isn’t that the point of Jurisprudence, to be consistent across time? These are just human beings, after all, as Scalia proved to I’m sure his own great surprise.

      1. Amfortas the Hippie

        feels like a particularly remote star from the bottom of the well, here, but still.

        akin to the idea of court packing, I’ve advocated for a long time for Article the First (
        Smaller Polities would be more user friendly and it would seriously shake up the perfidious and hypocritical intestinal blockage we have today.
        Libertarians are usually the first to pounce on this idea (“Moar Government!?”), but just like with my banker…knowing where folks in power live, and them knowing that everybody knows, is a pretty good check on behaviour.
        The PTB would never allow either of these, though.

  18. David in Santa Cruz

    Legal historians know that the U.S. Supreme Court has nearly always been a conservative tool of the ruling oligarchy. The Warren Court, who many readers grew up under, was an anomaly — a brief flowering of humanism in reaction to the rise of fascism and Bolshevism in the middle of the last century.

    All this rending of garments at Kennedy’s conservatism seems silly. Read some of liberal-darling Ruth Bader Ginsburg’s Big-Bank sycophancy — her opinion in Watters v Wachovia Bank is the genesis of Too Big to Jail. A progressive congress would be the answer, but regionalism and the imbalances inherent in the makeup of the Senate prevent this. The Supreme Court was never a progressive institution.

  19. Jason Boxman

    Really glad to see someone posting about this. The Supreme Court hasn’t be a legitimate institution since Bush v. Gore, as recounted in the post.

    1. lyman alpha blob

      And there’s also the fact that Bush v Gore was not intended to set precedent, which appears pretty dubious to this non-lawyer. Nobody should consider the Supremes legitimate after they installed a president using a decision meant never to be repeated.

  20. Punxsutawney

    Jefferson was right, when the Supreme Court took upon itself the “right of judicial review” that the constitution was just a thing of “wax” to be molded in whatever way the current justices wish it to be. A power which is not explicitly given in the Constitution.

    After more than two centuries of actual practice though that point is probably moot. The court lost it’s legitimacy for me with the Bush v. Gore decision. They have done very little since to restore it.

    The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law. My construction of the constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal. – Thomas Jefferson

  21. flora

    The courts follow the elections.
    If the Dem estab represented the people they publicly claim to represent we wouldn’t be at this juncture. But, they don’t, so here we are. Hysteria over the court’s power now is no more useful than hysteria over the electoral college was in December 2016. It’s a distraction from the Dem estab’s many failures over the past 30 years. Most obvious recent failure is Reid’s refusal to end the filibuster rule in the senate in 2009, which would have stopped the GOP minority blocking Obama’s nominations in 2009 and 2010. But the Dems didn’t do that.

    1. Allegorio

      Corporate Democrats are quite happy with right wing pro corporate justices. The courts will be the last bulwark of the neo-lib/cons as they seek to colonize and loot the US, nay the planet.

  22. Ptolemy Philopater

    Bravo! This absolutely needed to be said. This will boil down to a confrontation between the professional classes and the people. The American Bar Associations, the Medical Associations, Universities Corporations, have become criminal organizations designed to usurp power from the people and use the US Treasury as their personal checking account, socialism for the socially correct, . Their motto is “Privatize the world” and “Self deportation”. The Sackler family have kindly provided the means that those not blessed with high SAT scores can eliminate themselves.

    Let’s not kid ourselves, the captured court is about slavery and genocide. Unemployment is genocide, having no place to live is genocide, drone warfare is genocide. The Eugenics movement is still alive and well in the ruling class. Ethnic cleansing has become the issue of the Age. Please bear in mind, what this power grab is all about.

    The court needs to be radically restructured to the point where it starts to prosecute Crimes against Humanity instead of decimating workers rights. This should be the first order of business for a resurgent Progressive Congress. This is not an issue ot this judge or that appointment. This is indeed a constitutional crisis. FDR, as with so many things showed the way.

  23. Ashburn

    Lifetime appointments which now can mean 40 years or more on the court, while never again having to face voters or their elected representatives, is absurd under any system calling itself a democracy. We need a constitutional amendment to completely remake the system for selecting and placing judges on the court.

  24. PKMKII

    In addition to the problems of legitimacy in the eyes of the people and the real world damages done by cases like Citizens United, is what this era of the court as a captured political organ means to case law. Regardless of which side wins, court decisions are supposed to flow within the logic and structure of existing case law and the constitution; massive shifts in case law are relatively rare and require their own tight logic to build off of. However, what we’re seeing now are decisions where the justices twist themselves into contorted pretzels that offer little guidance for future lawmakers (see: Scalia’s “There’s a pressing government interest when I say there’s a pressing government interest” ruling in the Hobby Lobby case). With so many vague and contradictory precedents, future judges will have no legal bearings to work off of, and the whole thing will just turn into however they’re feeling that day.

  25. Susan the other

    The fix was in for Bush from the getgo. The Court just came to the rescue in this shameless way because they lost control of the election. Bush and Cheney were locked and loaded and had their sights, the sights of the imperialists, focused on the Middle East. Bush won because they wouldn’t let him lose. It is a deep state. O’Conner and Kennedy are just tools. But if we we had the courage of our convictions we would all agree that money is speech in the sense that sovereign money is cooperation. The sleight of hand happens when people do not choose to understand this but just use it deceptively. Citizens United was such a magic trick because if one vote = one small speech then a collection of campaign contributions should somehow represent one “money-vote as well, otherwise it is not a speech, it is a diatribe. Clearly no one can guarantee that those collected “money votes” have not been coerced so it remains to be proven if those contributions are not in fact extortion. But nobody in their right mind would ever consider that little twister to be “free speech.” A collection of money cannot be reduced to one vote, therefore those contributions should be considered to be election fraud. We need a new decision based on this argument, more or less, and because in order for speech to be money it must be on an individual basis. And limited to $50. Otherwise what on earth is the point of a campaign?

    1. Allegorio

      “Otherwise what on earth is the point of a campaign?” @ Susan the Other

      Making money! More money for consultants, More money for the media. More money for corporations. 7 consultants walked away with the lion’s share of the billion dollars Billary Clinton wasted on the 2016 presidential campaign.

  26. Big Tap

    Let’s not forget the 5-4 decision in 2009 regarding age discrimination. It effectively made age discrimination legal because the standards of proof are now much more difficult. Kennedy the “moderate” of course voted with corporations against workers. It may also be one of the reasons older workers quit looking for jobs after many of them were laid off. Companies could now pare their older employees without worrying about those pesky lawsuits. Many people over 50 suddenly became unemployable and gave up looking for work as job offers were sparse.

    1. Arizona Slim

      One of my good friends fits into that category.

      Retired USAF officer, all sorts of non-military skills, and he couldn’t find a decent job to save his life. He finally decided to just live off of his military pension.

    2. ambrit

      I’m experiencing that exact effect. One job, that I fit very well, waited an extra three weeks until a much younger and less experienced candidate came along. He got the job.
      I just turned down a “job offer” from a Bigg Boxx store to join their regional store reset team. In other words, out of town work, overnight, weekends and holidays. Okay, so show me the money, as the film said. Well, twelve dollars an hour and driving mileage. No other per diem. I turned that ‘golden opportunity’ down on principle. Besides, with Phyl sick, I want to stay home.
      I just might take that twenty hours a week, four hours on weekday mornings, at eight dollars an hour job with the Cut Rate Foreign Cheap Tools Emporium. I’ll be home for lunch every day.

        1. ambrit

          Yes. I got my information about the job from the actual store manager. He explained to me that he is given a labour ‘budget’ and is not given any leeway. That labour ‘budget’ is set by some hidden panjandrums in Corporate, and sent to the store managers for implementation. All the managers get to decide is how the total labour hours are utilized.
          As the Witch of Endor, (or is that one of the Witches Eastwick, or maybe one of the Wyrd Sisters,) intoned, “Beware the divining entrails of retail!”
          All chant around cauldron:
          “Bubble 1, bubble 2, bubble 3, toil and trouble;”
          “Vanities burn and economy rubble.”
          I wish I could do a ‘Snark’ version of the Three Witches scene from Macbeth. It’s connexion with todays’ economic world is too apropos to ignore.
          Alas, my insomnia is incontinent, innocent of intrigue.

      1. Left in Wisconsin

        I’ve got a brother in law who runs the tool rental program at one of Habitat’s ReStores. Pay stinks but he feels good about the work. And decent hours with no travel.

        1. ambrit

          Good for him, no snark. All the s—-y jobs I am encountering also encompass s—-y work environments.
          Charles Dickens would recognize today’s work regime. H—. So would Sinclair Lewis and Stephen Crane. It’s time to begin rereading the early twentieth century Muckrakers and Reformers. Jane Addams anybody?

  27. Anarcissie

    In contemplating the future of the Supreme Court, I think one should not expect everything to go on as it has been going for the last few decades. The political-economic system of the US actually does not work sustainably. The material conditions which are the ground of social behavior, policy and ideology are going to shift, possibly quite radically, and the superstructure will follow or crash.

  28. baldski

    If one researches our Supreme court, you will find corruption way back in its history. The decision that lawyers tell me gave corporations “personhood”, Santa Clara vs. Southern Pacific is a travesty as far I’m concerned. The head note was written by a former railroad president who was clerk of the court at the time. Why did the head note take precedence over the decision?

    Then you have a justice in the ’20’s I believe, who was so anti-semitic, he turned his chair around and faced the other way whenever the court was hearing from a Jewish lawyer.

    I mean they have more power than any branch of government and are not elected and serve for life, yet the constitution they are so fond of says very little about them.

  29. Scott1

    Gaius Publius is correct that the crisis is upon us more dramatically. It apparently wasn’t enough for Gore to lose. Later proven the winner, he is said to have not wanted to interfere with the Bush Cheney war.
    12 million died as a result of the Russian Civil War.
    Looks as if the Left, all about peaceful Civil Disobedience and for disarming everybody is hopefully provoked.
    Martial Law, or whatever there is in the Patriot Act to suspend rights of the Bill of them is to be effectuated.
    International Oligarchy United? Trump would like that. Putin & Trump to meet.

  30. Patrick

    We don’t need a constitutional crisis. The middle ground to rejecting the power of the court is pulling the trigger on the FDR option: packing the court.

    If progressives pull a majority in the executive and the legislature, there isn’t anything to stop them. The number of justices is not limited by the constitution and how can the court rule it unconstitutional? Are your newly appointed justices going to vote themselves out of a job?

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