June 27, 2018

Anthony Kennedy, swing(ing dick) justice on SCOTUS, retires

Sketch art via SCOTUSblog
Up until the current term of the Supreme Court, I might have called Anthony Kennedy something like a "quasi-libertarian" or "moderate libertarian" conservative.

But, after the craptacular set of rulings this week that he enabled, no longer.

Rather, the once-notable "swing justice" is instead a hypocritical swing(ing dick) justice.

Anthony Kennedy is no longer on the bench as of July 31, announcing his retirement after kicking centrism to the curb.

As for why he retired at this moment? A mix of flattery carrots from Trump and sticks from some senior GOP senators appear to have been key, according to the New York Times. It's "funny" how much of a sucker he apparently was for this fairly transparent psychological manipulation, but ... since it involved his precious "legacy," and, even for a justice, he seems to have a degree of vanity about it, it's not surprising.

If Kennedy was trying to cement something for future courts in his concurrence comments this term, he has surely failed. Ditto for whatever version of a legacy he might have thought he established a few years ago. Masterpiece Cakeshop, Janus and National Institutes of Family Life (California pro-life clinics) cases showed a turd-polishing level of hypocrisy, especially given that Kennedy had taken just the opposite stance in 1992 on Planned Parenthood vs Casey, requiring doctors to tell people about abortion alternatives, as Justice Breyer pointed out. SCOTUSBlog, among others, has more on Kennedy's career and legacy.

Dahlia Lithwick lost me when she claims Kennedy tried, then gave up, on courts being a check on the other two branches of government. NO, Dahlia, other than, possibly, on gay rights ... he never really tried. Stop turd-polishing or normalizing them.

Janus proved that, above all else, Kennedy is a late-stage capitalist quasi-libertarian. Going back to Citizens United and from that, to other campaign finance issues, if it was about money allegedly being First Amendment speech, Kennedy was for it.

But, if it was about actual speech? Kennedy could double-parse previous stances on that to reach the conclusion he wanted. As noted above, with National Institutes and with the Trump travel ban cases, he was a hypocrite on the issue of government bias. That said, he was also somewhat the same in Galloway v Town of Greece (my take here). His deference to civil religion showed his civil libertarianism was selective.

Basically, Town of Greece epitomizes much of Kennedy's jurisprudence. The more you digested it, the less substance you noticed it had, like the old joke about Chinese food.

His dissent on Carpenter, last week, showed that his civil libertarianism rarely extended to criminal defendants. He wrote the dissent on that case. And, by that dissent being in part about privacy issues, Kennedy was a hypocrite again, as privacy was part of his Lawrence v Texas ruling saying that criminalizing sodomy was unconstitutional.

Beyond speech, as this term's ruling on credit card fees and related issues showed, if it was about money in general, he was for it.

Five years ago, Tony the Pony gave us fair warning that his vaunted First Amendment concerns were selective as to which clauses he cared about, selective in interpretation and selective in application based on plaintiffs and defendants.

Unfortunately, Popehat loses me at his sixth tweet in a thread that is related to this issue:
I responded:
And, that's that.

No, I"m not a lawyer, but a 30-sec teh Google earlier in the day had already led me to the Abood case backgrounding this, after I read the Janus ruling. I know Ken White knows what Abood is, and that it was adjudicated 41 years ago, so how he can claim that Janus's issues at hand were "new-fangled judge-created exceptions or asterisks to First Amendment protections," I don't know, to put it politely. To put it less politely, I call bullshit, Ken. And, in the wake of NIFLA, several online newsmags mentioned the Planned Parenthood vs Casey and SCOTUS saying, yes states could require doctors to talk about abortion alternatives. (More on Abood and the thread of labor history from there to Janus here.)

Ken, if you want to claim Abood was wrongly decided, that's one thing. (I'd still disagree with you, of course.) BUT, that's not what you claimed. Your statement is pretty clear, and in light of Abood — highly wrong. Deal with it.

In a new Tweet, Ken says:
Which, on my reading of the Abood background to Janus, leads me to stand by my take on last week's Tweets. This isn't Ken just projecting himself into the thinking of a majority of the Supreme Court; it's his personal take.

Ken has the invitation already issued to provide more clarity.

On further exchange of Tweets, Ken admits "new-fangled" is vague, but his admission is in a sense that seems to stand by the idea that Janus is de novo in some way, IMO:
That's my take.

As to whether the big picture is his personal take, or his "projecting" into the thinking of the SCOTUS five, Ken says:
To which, I responded:
And, I'll stand by that as well.

Plus, Ken, you're a lawyer. Even in a brief Tweet, you know something about clarity and precision in language, as I do as an editor.

And, if you wanted to offer your take, you had time on that thread last week. Or, simply, add one tweet to make clear this was your attempt at mind-reading the Court, but that you didn't personally agree with all of it. After all, you weren't retweeting somebody else. And, you started the thread claiming you were rejecting others' interpretations.

So, this is not just reading the mind of SCOTUS with your interpretation. By rejecting other interpretations, I infer you are saying yours is better. And, thus, not just interpreting but taking a personal stance.

Phrasing it another way, and getting rid of the issue of normative, which can mean several things, whether you intend it as a narrow jurisprudence term or more broadly — I read you as saying Janus (and NIFLA, let's not forget) were correctly ruled, were correctly ruled without this being some new conservative legal onslaught (I'll agree; it was Kennedy being his true self more bluntly) and you presenting WHY you think they were correctly ruled. And, on Janus, you're wrong in light of Abood; in NIFLA, you're wrong in light of Planned Parenthood v Casey.

Or, if I'm more generous one way, less another, your interpretation / mind-reading of the Court is itself a fail. That's because, for the same reasons. Obviously Janus wasn't introducing anything new, nor was NIFLA.

(And, this back-and-forth has given me the second most popular tweet of the last 30 days and another in my top 20). I'll probably do a breakout of this into a separate post. Exactly what it says will depend on what Ken says, or does not, on his blog. That said, he has more true-blue libertarians than him among commenters, who probably love Janus; I've seen "taxation is theft" comments semi-regularly. And had people over there attack me occasionally on my Missouri prof and free speech post which got some publicity off Ken.)

Jeff Toobin also calls out the wrongheaded thinking of the Court on Janus, and with that, either the support for such wrongheaded thinking Ken offers, or that he indulges himself.

And, let's transition back to the case in general.

Beyond that, Kennedy has in the past not been a friend to third parties in ballot or debate access cases.

As for what's next? Despite some Twitter rumors like this about Thomas Hardiman:
Rick Hasen, creator of Election Law blog, says he expects Trump to go with someone with Federalist Society imprimatur like Brett Kavanaugh. Sure, one could hope that Trump does a flip-flip, but, given that some prolife groups have already said they'd still back Trump even if they heard he had paid for a woman to have an abortion, not likely.

And, Geoff ... Kennedy was socially liberal on only one issue. Actually, it was more socially libertarian. On reproductive choice, he was socially centrist at best. On most other non-fiscal issues, he was conservative.

And, that's probably who Hardiman is.

This all said, Hardiman is on the same bench as Trump's sister, as noted in this profile. SCOTUSblog has its own profile.

Between the two and his linked-above Wiki page, I'd say Hardiman is even less friendly to the freedom of speech and freedom of religion parts of the First Amendment than Kennedy. And perhaps more hostile to the Fourth Amendment.

This then said, contra NARAL, as reported by Teen Vogue, Hardiman has NOT contributed to National Right to Life. Per OpenSecrets, that's a different Thomas Hardiman.

Vox puts Kavanaugh and Hardiman on a nine-person shortlist. Here's a lead-in to longer list from Splinter. If you're a Green-leaner like me, fire back at the dumb Hillbots in comments. I already have. Except the swinging dicks there didn't post it. So, go straight to the White House press release instead, and Splinter gets a "no-follow" on its link.

Also for the Hillbots, Bill and Hillary encouraged Donald to run. So, STFU, along with GFY, until you own that, too.

Speaking of, I have a new "Oh, the SCOTUS" piece up for Hillbots, or Dems in general, thinking that will convince the likes of me to rejoin the duopoly.

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