Justice Kennedy — defeatist or hypocrite?


Anthony Kennedy was the U.S. Supreme Court’s swing vote, but he usually swung far to the right. He deserves a lot of credit for helping George W. Bush’s steal the presidential election in 2000. We can also thank him for his critical role in the Citizens United decision, which allows corporate kingpins to funnel huge amounts of money to the candidates who would do their bidding.

This week, Kennedy capped his career by helping to strip organized labor of its right to collect dues from nonunion members, even though union and nonunion workers benefit equally when unions negotiate contracts.

And he struck a major blow for racism by backing Donald Trump’s Muslim ban – “travel ban” is the euphemism – a Supreme Court decision that will live in infamy, like Dred Scott v. Sandford (upholding slavery) and Plessy v. Ferguson (upholding “separate but equal” laws) and Korematsu v. United States (upholding internment camps for Japanese Americans in WWII).

Slate’s Richard L. Hasen wrote that Kennedy’s recent court decisions reflected the “depressing defeatism” of an old man who knew his time to retire had come. Hasen quoted from the one-and-a-half-page concurring opinion Kennedy wrote to clarify why he went along with the majority vote on the Muslim ban. It sounds almost like an apology:

There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and promise.

Kennedy surely knew Trump had no interest in “adhering to the Constitution.” He saw and heard Trump’s many public comments about Muslims and knew the travel ban initiative was motivated by racism, not concern for national security.

And he knew it’s the Supreme Court’s job to stop a president from abusing the powers of his office, especially in an era when the majority party in Congress is a rubber stamp for the president’s whims and prejudices.

So why didn’t he do the right thing? Too defeatist, I guess, or maybe too much of a hypocrite to admit that loyalty to party (he’s a Republican with libertarian leanings) was more important to him than “judicial scrutiny,” even though the party currently is marching in lockstep with a president who aspires to be a dictator.

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