Monday, July 02, 2018

Anthony Kennedy and Our Delayed Constitutional Crisis


Image credit: Mike Thompson / Detroit Free Press

by Gaius Publius

Today’s announcement that Kennedy is retiring only consummates his abdication of responsibility. Kennedy has chosen to let a deeply dangerous president and his allies steer a badly damaged ship out to sea. Is it fair to judge an eighty-one year old man so harshly? Yes, it is.
–Yascha Mounk, Slate

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, with 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 don't corrupt.
  2. Gifts of money don't look corrupt.
  3. Influence over politicians doesn't 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 does come, will tear 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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At 10:37 AM, Anonymous Anonymous said...

Our Constitutional Crisis actually began the day Richard Nixon nominated Lewis Powell to be a Supreme Court Justice - and the Democratic-majority Congress confirmed him despite the infamous Powell Memo, which is considered to be the opening salvo of neoliberalism in politics. The Memo was commissioned in August 1971, but the public didn't know about this "work" until Columnist Jack Anderson exposed it around August 1972 after Powell had been nominated (October 1971) and confirmed by a vote of 89-1 (December 1971) and had taken his place on the Court (January 1972). There is every reason to believe that Nixon was informed about the Memo long before the public ever knew about it.

The Powell Memo is the script by which corporatism has taken over our nation in the course of a long-term slow-motion coup. If that doesn't constitute a constitutional crisis, then nothing does.

At 11:52 AM, Blogger Gaius Publius said...

Yes, and no, Anon. Yes, that's a kind of birthplace for the reactionary movement. But no, it's not a crisis until people start freaking out about what's going on, and we're not to that level of freak out yet. I think it's coming though.

(BTW, I put the start date or turning point at Johnson's refusal to "out" Richard Nixon as a traitor just prior to the 1968 election. I think almost everything in the country pivoted at that point. Others may place it as JFK's assassination, depending on who they think was guilty. If it was the CIA who pulled it off (with help), that's a turning point that's hard to argue with.)

Thanks for the comment. Just some thoughts of my own.


At 1:44 PM, Anonymous Anonymous said...

Gaius, I was one of those freaking out about The Memo back in 1972 once I heard about it. But too many decided that he was just posturing and that it couldn't be made reality.

I'm still in favor of the attempted Coup of 1934 as the root event of today's troubles. Corporatism was favored by the wealthy back then, and they never got over that. The Dulles Brothers weren't an accident! They were intended to get the keys to the gates and open them once the Barbarians arrived. It took longer than planned (and a falsified Assassination "Investigation"), but the Barbarians did finally arrive. The only "justice" is that neither Dulles lived to see it happen.

At 6:28 PM, Anonymous Skip Kaltenheuser said...

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 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.

At 8:16 PM, Anonymous Anonymous said...

GP, if you define a 'crisis' as the point at which people, generally, start freaking out... then we are not now and probably never will be in one.

half those who vote worship at the Nazi side of the altar of this corrupt distortion of a charade of democracy.

the other half worship at the other side of the altar.

Problem is, it's the same altar in the same church being corrupted and distorted by the same money. The first group hate, as all Abrahamic religions seem to be compelled to do. The other side hates a little less, but is trying to sidle over anyway.

I agree with your catalyzing moment.

If the electorate in this shithole can't get out onto the streets for the supreme court coup in 2000 (SDOC's biggest payback for her nomination), I don't see them awakening for anything.
On that day:
1) the charade ended. we became a fascist state totally run by money.
2) gore showed all of us his vagina
3) more Nazis were activated to protest the recount in FL than in the nation protesting the coup. And, yes, most of the Nazis were paid. By the money.
4) SDOC cemented her legacy as the Neville chamberlain of this final chapter in our history. She should have been impeached.

After 2000, all further adoption of Nazi memes became predictable and inevitable.

BTW, that makes obamanation the worst, by far, president and the democraps of 2009 our worst party in our history. The voters gave them the mandate and they utterly refused to act on it.

At 9:09 AM, Anonymous Anonymous said...

"BTW, that makes obamanation the worst, by far, president and the democraps of 2009 our worst party in our history. The voters gave them the mandate and they utterly refused to act on it."

And to date, the "democrats" have done nothing to improve that reputation.

At 10:21 AM, Anonymous Anonymous said...

9:09, not just that, but they refuse to learn when a "strategy" fails miserably.

Their meme in 2016 was, effectively, "we're shit, but at least we're not trump".

This cycle it's "you better hold your nose and your lunch and vote for us or you'll get more of trump". That's what DWT has advocated anyway (see top article at this time).

It didn't work in '16. It won't work now. Their only hope is that the trump stink suppresses the Nazi vote more than their stink suppresses their own vote.

At 9:40 PM, Anonymous Anonymous said...

a note about kennedy. He did NOT abdicate his responsibility.
He understood when he was nom'd and affirmed that his responsibility was to corporate neofascism. He was always true to that responsibility.

Along the way he maintained the charade of swinginess by occasionally affirming social issues about which the money is indifferent.

As with SDOC, when the issue pertained to the primacy of money and the moneyed, and I would add the hate issues as well, his fidelity was never in question.

I don't know why americans are too stupid to discern what someone's duty truly is as he does it...

I've known that the SC has been 5-4 fascist for 4 decades. It will still be 5-4, but more Nazi after trump's next one is confirmed by 6 democraps.

I have had no illusions about "divided" or whatever. It's been solidly fascist. period.


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