Justice Kennedy and How Success Is Just Showing Up . . . And Knowing When To Leave


225px-Anthony_Kennedy_OfficialThere are various reports confirming that Justice Anthony Kennedy has told staff that he is seriously thinking of resigning and has notably not selected clerks for the October 2018 term. That raises some intriguing issues, including how such a vacancy would play in the midterm elections when there are 33 seats up for grabs in the United States Senate.  The vacancy could be used to rally conservatives and liberals alike.  As for Kennedy, it could be the difference between a lasting and short-lived legacy.

When Justice Anthony Kennedy retires, it may be the greatest proof of Woody Allen’s rule that 80 percent of success in life is just showing up. He may now show that the other 20 percent is just leaving. After a spasm of stories about his imminent retirement at the end of the last term, Kennedy is still shuffling around the corridors of the Supreme Court at age 80. Now, media sources report that Kennedy has not hired clerks for the October 2018 term and has told his staff that he is considering retiring, presumably in 2018. If so, Kennedy could again show that timing is everything.

One of the most impressive aspects of Kennedy’s tenure on the court has been a rather impeccable sense of timing. Time and time again Kennedy seemed to be in the right place at the right time to make history. Even in his retirement, the timing will maximize the impact of the decision. If Kennedy retired in 2017, President Trump would have likely prevailed in appointing a hard-right nominee and, in so doing, flipping the outcome in a host of important cases. However, there are important events in 2018 just a month after the start of the Supreme Court session: the midterm elections.

If Kennedy waits until after the midterm elections, the Senate could flip and guarantee a moderate replacement on the court. That would depend on whether he retired by tradition (though hardly an unbroken tradition) on the last day of this session. That would still give the Republican majority months to push through a more conservative nominee. If he were to wait until the term that starts in October 2018, he would all but guarantee not just a moderate but his own legacy in the area of gay rights.

Kennedy’s arrival on the national scene was the perfectly timed event in 1987. He was the “third on a match” nomination. Justice Lewis F. Powell Jr. had retired and President Reagan appointed Robert Bork, a judge on the D.C. Circuit best known for his role in Nixon’s “Saturday Night Massacre” when he fired Watergate special prosecutor Archibald Cox. Bork was a conservative intellectual, but his nomination took a nasty turn after Sen. Ted Kennedy (D-Mass.) went to the Senate floor to denounce what he described as “Robert Bork’s America” and declared “no justice is better than this injustice.”

The result was that Bork was “borked” — barred from confirmation in an organized political campaign of interest groups and political figures. While he never made it to the Supreme Court, his name would become a common noun, adjective and verb for nominees who are targeted by groups to discredit or demean their records.

After the Senate rejected Bork 58-42, Reagan nominated Judge Douglas Ginsburg from the D.C. Circuit. He seemed as safe a bet as a respected jurist with an accomplished resume. However, NPR’s Nina Totenberg then disclosed that Ginsburg had used marijuana as a student at Harvard and continued to do so as an assistant professor of law. As a result, Ginsburg withdrew his name from confirmation.

When Kennedy arrived, the Senate and the public were exhausted and Kennedy skated to confirmation on the basis that he was not Robert Bork. On top of that, Congress had released the Iran-Contra report accusing Reagan of responsibility in the scandal. Timing. It was like following Tanya Harding in the Olympic skating completion. Just doing a single spin without breaking a knee cap was good enough for gold. Kennedy secured the highest vote of any of the current members of the court: 97-0.

Kennedy then became a regular but not robotic conservative vote on the court. His entry on the court occurred at a time when it was sharply divided on ideological grounds. Kennedy — with Justice Sandra Day O’Connor — walked right into the gap and became a key swing vote, giving him a greatly enhanced role on the court. That role was most evident in 1992, when he joined O’Connor in the plurality decision in Planned Parenthood v. Casey, and in doing so, prevented the overturning of Roe v. Wade and the constitutional right to an abortion.

Kennedy would use his key position to forge the foundation for a right to dignity, particularly in the area of gay rights. In his historic opinion striking down the criminalization of homosexual relations in 2003 in Lawrence v. Texas, Kennedy overturned the Supreme Court’s infamous decision in Bowers v. Hardwick and extended due process protections to gay couples. When O’Connor left the court in 2005, Kennedy emerged as the sole swing vote. One such decision will likely prove his most lasting legacy: the recognition of the right to same-sex marriage in Obergefell v. Hodges in 2015.

Now Kennedy’s timing will again have a pronounced impact in his departure. He could give Trump a second seat on the Supreme Court after a campaign pledging to appoint “clockwork conservative” justices who will be both predictable and reliable in their votes. Ironically, Reagan hoped that Kennedy would produce a court with a bulwark of conservative justices, and he may finally achieve that goal with Kennedy’s departure — just three decades later.

The great irony is the Trump has never been viewed as a true conservative by the GOP base. Yet, he is about to achieve what Republican icon Ronald Reagan could never achieve: a solidly conservative Supreme Court. The replacement of Kennedy with an Alito-like nominee could shift the balance in a host of areas. The center of gravity of the court would move shift to Chief Justice John Roberts — a further step to the right.

The timing of this retirement could well cost Kennedy his most cherished legacy: his development of a liberty interest to protect personal dignity on issues like same-sex marriage. While it is highly unlikely that any newly formed majority would return to the Bowers v. Hardwick era and the criminalization of homosexual relations, it is equally unlikely that a Trump nominee would share his vision of the right underlying same-sex marriage. To make matters worse, the new swing vote — Justice Roberts — was in the dissent on the last two major opinions by Kennedy. While the court summarily reversed the Arkansas Supreme Court on the basis of Obergefell v. Hodges, four justices are on record as opposing the logic in that case.

Timing will, therefore, be key in the Senate. Just months ago, the Senate finally did away with the last of the filibuster rule in the fight over the confirmation of Neil Gorsuch. The Democrats had unwisely eliminated much of the rule to achieve relatively little under the Obama administration. The Republicans used that prior decision as justification in getting rid of the filibuster for Supreme Court nominees. Now, Democrats have little to use to demand a more moderate selection that might preserve aspects of Kennedy’s legacy. However, a departure after the midterm elections — with 33 Senate seats in the mix — could change the Senate itself. As always for Kennedy, it is just a matter of timing.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University, where he teaches a course on the Constitution and the Supreme Court.

87 thoughts on “Justice Kennedy and How Success Is Just Showing Up . . . And Knowing When To Leave”

  1. Off Topic but for those interested in all things TrumpThe Australian Broadcasting Commissions (ABC’s) 4 Corners program on 3/07/2017 at 20:30 (GMT+10) had a segment on D J Trump’s Indonesian investments in conjunction with certain oligarchs left over from the Soeharto era.

    It will be available on the ABC’s streaming service http://www.abc.net.au/iview for for 2 weeks from the date of broadcast.

  2. The general direction of the Court in coming years seems to be to defer more to Congress, and encourage that lawmaking reside in the locus of Congress, not the Courts.

  3. ” Kennedy is still shuffling around the corridors of the Supreme Court at age 80″
    Don’t you think this is stereotyping your elders, Jonathan? Show some respect, please.

  4. I was hoping that Kennedy’s comment about knowing when to leave was a more than gentle hint to Ginsburg.

  5. I heard Kennedy speak at a CalBar meeting a few years ago. He told us that he would like to see more amicus briefs filed in the Supreme Court. Why? Because (and I am paraphrasing) they don’t know enough about the practical aspects of thecases which they decide. It was a refreshing (and surprising) bit of humility and honesty.

    In my view, those who aspire to have a Supreme Court consisting only of Justices who agree with their own viewpoint(s) are myopic fools. We need members of the Supreme Court who hold divergent views and come from different backgrounds. In particular we need more Justices who have had experience dealing with the practical aspects of Supreme Court rulings, i.e., attorneys who have repeatedly tried cases in court.

    1. We need members of the Supreme Court who hold divergent views and come from different backgrounds.

      In my view, that is the role of Congress. When it comes to the Supreme Court, they have but one job; to review cases stemming from divergent views and [that] come from different backgrounds and then converge on the constitution.

      1. I agree.

        What does “divergent views” actually mean? Does it mean that half the Bench believe that they circumvent Congress and can mold our laws to fit their own personal political views? Or does it mean that they respect the Constitution, and that if the law does not conform with their own personal wishes, then they follow the law?

        What I value most about Professor Turley’s opinions is that he will often state what he would personally wish to happen, and then he would state the law, and the law takes precedence. Different personal politics would indeed be valuable, but only if they respected the word of law and did not try to twist it into a pretzel to fit any activist aspirations.

        Judges should not be activists, but merely apply current law. If they don’t like that law, well, they can vote just like the rest of us.

        1. The problem is, how one views the Constitution and the laws is viewed through one’s personal prism. When people praise Scalia, for example, for “upholding the Constitution” and scorn Judge R.B. Ginsburg for being an activist and not “upholding the Constitution”, it reflects a fundamental lack of understanding of the dynamic nature of law and how the Constitution and Bill of Rights set for concepts that apply to situations not imagined at the time the framers wrote these documents. Cases like Griswold v. Connecticut, which overturned laws forbidding instruction on contraception, even for married couples, were decided on the basis of fundamental Constitutional principles–the right to privacy–to be free from government interference in private matters. No, the Constitution doesn’t say that it is specifically illegal for the government to barge into a bedroom where two men are making love and to arrest them, nor does it specifically say that the government cannot arrest someone counseling married couples on contraception, but the illegality of the government interfering with these private activities is embodied in the concept of the right to privacy–the 4th Amendment. Conservatives who think they have the right to control other people’s lives accuse judges who apply Constitutional principles to modern factual issues of “judicial activism”–that they are twisting what the Constitution says to fit their own needs.

          The framers of the Constitution could not have foreseen telephones, and therefore, that the government might spy on private telephone conversations without a warrant, but the illegality of this conduct is included in the Bill of Rights. There were no automobiles then, either, but the government cannot seize your car and search it without probable cause or a warrant. Constitutional principles forbid this. Roe v. Wade isn’t fundamentally about abortion, either, but rather–privacy and personal autonomy–the point at which the government has a say-so in a woman’s right to reproductive self-determination. That point is the age of fetal viability. Before fetal viability, a woman has the right to decide for herself whether she wishes to terminate her pregnancy. This right is embodied in the Constitution. Law is dynamic, not static, so there isn’t any “word of law” that is getting twisted, except in the minds of conservatives.

          1. This right is embodied in the Constitution.

            The fixed and enduring principles found in the Declaration of Independence do not state we have an unalienable right to viable life. The constitution has not and cannot amend the DoI. And remember, whatever positive right to murder human life that is not considered viable your government blesses you with, can also be modified to include any non-viable human life that your government deems to be a burden on society. So sure, law is dynamic, principles are not. Be careful what you wish for.

            1. You say that abortion, apparently at any stage, is murdering a human life. You are entitled to that opinion, but not everyone shares it, and that’s the rub here, which you don’t seem to grasp. Everyone does not agree that a fetus incapable of life outside the womb has equal rights to a fully developed person. Then, there’s the issue of the woman’s right. You think she has none, regardless of how the pregnancy was conceived. Everyone does not agree with you. Those who disagree with you are not activists. Your belief in equal rights for a fertilized ovum is not a cast in stone principle. You think it is. Others disagree.

              1. 37 states have fetal homicide laws, conveying on unborn children the same status as people living outside the womb. Your heartless opinion on unborn children is being rejected, state by state. Some pretty blue states like CA, Minnesota, PA, have already passed fetal homicide laws. Science and technology, something progressives claim to revere, is at the heart of the yearly march of increasing numbers of people realizing how wrong abortion is. We can see via ultrasound just how living and precious the unborn are.

              2. Then, there’s the issue of the woman’s right.

                You might make your case to the state legislature, which is the general repository of discretion over the penal code.

              3. You think she has none, regardless of how the pregnancy was conceived.

                You have no idea what my views are regarding a woman’s right. My comment was specifically to address the natural right to life. There are no grey areas in that regard. We either have the natural and unalienable right to life or we do not. Our founding fathers established a government specifically to secure that right, among others. Giving the government the power to legislate whose life is worth protecting is not the direction anyone should want to go, and the reasons should be obvious. Today it’s your fertilized ovum that is not considered viable, tomorrow, it’s you or someone you love in assisted-living that is deemed to be not viable.

          2. The problem is, how one views the Constitution and the laws is viewed through one’s personal prism.

            It doesn’t matter what ‘personal prism’ you employ, there is no constitutional provision with which a state law limiting the issuance of marriage licenses can be said to be in conflict. There is none with which a state law proscribing abortion is in conflict. Judges apply a great deal of verbal chaff to obscure the reality: it’s all about what they and their social circle want.

        2. Karen

          There are different methodologies for interpreting statutes. Congress enacts laws that are poorly written. Older statutes have to be applied to unanticipated fact patterns. Different laws enacted at different times may be seemingly inconsistent.

          It is far more complicated than saying Judges should not be “activists “. That is trite expression often used by people to justify a particular desired result or to criticize a result they don’t like. In my view there are judicial “activists ” of every stripe and color, including Judges who fancy themselves conservatives.

          I have handled litigation related to taxes for many years. There are Judges I’ve encountered who seemingly are inclined to rule for the government in tax cases. There are other judges seemingly more inclined to rule for taxpayers. The fault lines in this regard don’t necessarily turn on whether a judge is “liberal” or “conservative “.

          Ask anyone who litigates for a living. They thoroughly understand what is meant by the divergent views of Judges.

          1. It is far more complicated than saying Judges should not be “activists “.

            Some questions are pretty simple. The response of those wanting particular policies implemented by judicial ukase is this sort of gamesmanship whereby poses of superior knowledge and intellectual subtlety are struck. (Belied by, among other things, a previous generation’s jurisprudence, aside from the plain meaning of text). The net result is a culture of mendacity among progressives. Marginally less dishonest progressives (e.g. Michael Kinsley) are willing to admit that many ‘landmark cases’ are rubbish but then launch into tu quoque diversions.

      2. Your comment appears to be word salad which translates into ” I want all Justices to think the same way. “

        1. Then you need a new translator. No where in my post did I mention how they should think. Their job is to set aside their personal views and rule on the constitutionality of the cases before them. Oh no, not that! Bon Appetit!

    2. In my view, those who aspire to have a Supreme Court consisting only of Justices who agree with their own viewpoint(s) are myopic fools. We need members of the Supreme Court who hold divergent views and come from different backgrounds.

      Tell that to the pols who keep nominating Ivy League denizens.

      What we actually need are judges with a circumscribed understanding of their function and a lively intellectual integrity. Anthony Kennedy is not that man.

    3. Don:
      “I heard Kennedy speak at a CalBar meeting a few years ago. He told us that he would like to see more amicus briefs filed in the Supreme Court. Why? Because (and I am paraphrasing) they don’t know enough about the practical aspects of the cases which they decide. It was a refreshing (and surprising) bit of humility and honesty.”

      Of course, the SCOTUS has no idea of the across-the-board affects of their decisions. They are judges and they shouldn’t be legislating — a process where considerations of the practical effects rule the day. That is exactly what happened to the NInth Circuit and the Fourth Circuit in the deciding the temporary immigration ban. Both of those courts got caught up in the campaign rhetoric and the supposed effects on religious groups and ignored the facts, underlying Constitutional policy and eons of precedent of letting the President run foreign policy. That’s the overriding issue for the Court not whether granny can jet in from Tehran to catch Yasmin’s wedding.

      It’s a question of job duties. No judge can hope to understand all the practical effects of a statute, rule or executive policy (nor should he/she) since that was supposedly handled earlier in its passage. The judge is there to run the test to see if the law infringes on precedent or principle. To evaluate that, the Court uses the case law and the Constitution as the standard not the bleatings of the press or the rantings of some kooks at an airport waiting room and assuredly not the partisan writings of some interest group in an amicus brief.

    4. Bingo, we have a winner. Would it be too much to ask for another Supreme Court Justice who has actually defended a criminal case?

    5. We need judges who don’t rule from the bench and follow the Constitution, instead of their ideologies.

  6. There are, as stated in the column, 33 Senate seats up for grabs in 2018.
    It’s worth noting that the GOP has to defend 8 of the 33, and the Democrats have to defend the 25 Senate seats they currently hold in 2018.
    I think in 2016, the GOP had to defend 24 seats to the Democrats’ 10 seats.
    Just as the calender/scheduling heavily favored the Democrats in the 2016 Senate races, it heavily favors the GOP in 2018.

  7. Liberals were so sure that with the support of the fake media and all the rich establishment people on both sides of the aisle they will win in 2016. It seems like they are getting pretty sure now that in 2018 they will win big . I will not be that sure about that . Trump has the potential to completely annihilate the opponents this time, and 2020 can be the end of establishment parties .

    1. Big pharma and the Kochs will be working hard to keep the republicans in control of the senate. They usually win.

      1. Boo! Ah, just kidding. I’m not certain Big pharma or the Koch brothers will need to make much of an effort, given the fact the Democrats are still in denial over their recent losses. In fact they seem to be doubling down on the messaging that has backfired with the mainstream electorate.

        At this point, all that will be necessary is to nudge the Left ever so gently a la Cass Sunstein and before you know it, it will be 2020 and Obama’s fundamental transformation will be largely reversed. 🙂

        1. Maybe the mainstream masses want higher premiums and higher prescription drug prices plus dirty air and water while the oligarchs get fancier and fancier digs in pristine locations. Time will tell.

          1. Exactly. Please continue to believe that and act accordingly, yeah, that’s been working out so well for you. 😉

            1. My life is fine. Considered about the future. When you burn up the planet there is no going back.

                1. Concerned about the future.

                  Most people are concerned about the future in one way or another. We won’t all agree on what the most urgent of concerns are, but what we should agree on is how the concerns are addressed, especially by government. Fear-mongering is a tactic used to influence ignorant people and that’s where the Progressives make a living. Those progressives exist in both major political parties and the bureaucracies they’ve built.

                  Here is an interesting article that addresses the fear-mongering of the Climate Change advocates:

                  The spectacular rise and fall of climate alarmism’s former golden boy is a courtroom battle with even more ramifications than the infamous Scopes Monkey Trial of 1925. To much fanfare at the time, Mann had sued Ball for daring to publish the damning comment that Mann “belongs in the state pen, not Penn. State.” Dr Ball brilliantly backed up his exposure of the elaborate international money-making global warming scam in his astonishing book, ‘The Deliberate Corruption of Climate Science‘.


              1. frankly – I can tell you from experience that once the temperature gets over 110, a degree or 10 does not feel any different.

                1. Paul Schulte, If Democrats are not elected, tge temperature eventually gets to the point where the planet burns up.
                  Haven’t you been reading Frankly’s posts?!😄

                  1. tnash – that prediction must be based on that prediction of Stephen Hawking, who went bats**t crazy about global warming/heating.

                  1. frankly – one model of one plane could not be flown by American Airlines. Southwest was flying in and out all day, as was everyone else.

                    1. One you get to 126 degrees more planes won’t be able to fly out of there.

                    2. frankly – the thermometer is at the airport and the hottest it has ever been was the year they moved the thermometer, it got 122 that year. No other reporting sites were higher than 120. They moved the thermometer back to the old spot the next year.

            2. Face it, Olly.
              The basket of deplorables’ desire for high drug costs, high insurance premiums, dirty air, dirty water, and dirty books means that saviors like Frankly must struggle endlessly to save the country and the planet.

              1. The people Clinton wrongly called the basket of deplorable were duped by Trump’s faux concern for them

                  1. Made her look like a phony and now he looks like a phony too with his Goldman government and his inability to provide a decent health care plan.

                    1. he looks like a phony too with his Goldman government…

                      Please explain in detail what that even means. What has occurred in the 6+ months Trump has been in office that reflects a Goldman government?

                      Also, how long did the Obama administration take to provide a decent health care plan? I know, I’m not talking about what the ACA has actually proven to be. No, I’m talking about the amount of time that process took before it ended up on his desk?

                    2. Olly, .The “Goldman government” refers to concerns about Goldman Sachs people on the Trump administration.
                      I don’t think the Goldman Sachs issue was as widely covered when a few dozen Goldman execs were on the Obama administration.
                      The 100-150 former lobbyists in the Obama administration didn’t draw much attention, either.
                      I was never able to tally up the total number of Goldman Sachs people who ended up on the Obama administration, and I don’t know what the total is currently in the Trump administration.
                      For some reason😉😏, the Goldman people in Trump’s afministration gets far more coverage than in the Obama administration.

                    3. The “Goldman government” refers to concerns about Goldman Sachs people on the Trump administration.

                      I knew that much, but what I was looking for Frankly to explain (in his own words) is how has that manifested itself in the short time President Trump has been in office. I suspect he and I do not agree on how one should measure the performance of a sitting President. The tell for me are the incessant calls for impeachment and the undermining of his administration even before he was sworn in. What Frankly doesn’t understand is President Trump is on a very short leash with conservatives. He may have to stand in line behind conservatives to call for Trump’s impeachment should that be warranted.

              2. We all have our savior’s, some armed with actual facts and the other’s armed with feelings. Frankly feels the facts are wrong but has proven to be either unwilling or more likely unable to put a factual argument against them. The most illogical of arguments he puts forth are that Republicans actually want all the negatives he states. On its face it is a ludicrous claim. That’s some deeply flawed logic and it appears evidence won’t cure it.

                1. Strike three. Republicans know that global warming is a fact, but don’t care because big oil signs the checks. Hows that for wanting all the negatives? That’s the long and the short of “we have to weigh the economic consequences” of trying to save the planet. Although this is just speculation, but I think that some of the Republicans actually subscribe to the “end of days” claptrap and the “second coming” foldol and don’t mind a little dystopia if it gets them to the pearly gates at the right hand of Gawd; or not. So, ya, “enemy of humanity” is a jacket that fits nicely on these new radicals who advertise themselves as Republicans.

                  1. The “end of days claptrap” is mostly spouted by global warming alarmists.
                    Paul Erlich had a somewhat different end of days faith….most of the planet was supposed to be dead of starvation bu the 1980s.

                    1. tnash – personally, I am more concerned about the Yellowstone super volcano. If it explodes, we are all goners. There is going to be a nuclear winter.

          2. You know, Frankly, I really wish you would read up about this issue.

            It is an undisputed fact that Obamacare drove UP the cost of health insurance. Not only did it not decrease it at all for the unsubsidized, but its architects are on record that the goal was never to bring the cost down.

            And here is something else to consider. Insurance companies typically have used co-insurance, premiums, copays, and deductibles to not only bring down the cost of health insurance on average, but to encourage clients to self regulate usage. Otherwise, if everything was free, we would go to the doctor to get a splinter pulled out. So, when Obamacare put so many “freebies” on the plan, it drove up the cost of health insurance. That is why they had to make the deductibles $12,000 for a family, because without that $12,000, the premiums would be thousands of dollars more a month. And you can call a cost a “tax”, or a “premium”, or a “copay”, or a “deductible”, but in mathematical terms, the cost of insurance is the sum of all of the above when they are applied towards health care. So who really cares if a cost is without a copay? It is intuitively obvious to the most casual observer that it is not “free.” When you pay $12,000 in an annual deductible, it sure as HELL is not free, and it insults our intelligence to claim that it is.

            The DNC singlehandedly drove up the cost of healthcare, and a great many people lost their doctors, and lost access to top cancer hospitals.

            And the Democrats want to voice concern about the cost of insurance now? And their faces are not turning purple in shame at their hypocrisy? Where the hell was their concern over the past 8 years for how much their plan cost people like me?

            1. Forbes – “Overwhelming Evidence That Obamacare Caused Premiums to Increase”


              And for balance here is the Left Leaning Time – More people are now insured, hardly surprising considering we are fined if we are not. But Premiums are increasing. “Even as more people are being covered, however, the choices for coverage are decreasing. Major insurers such as UnitedHealth and Aetna are scaling back participation in Obamacare marketplaces for 2017. The result is that in one-third of the counties in the U.S., people who don’t have coverage through work will have a “choice” of only one insurance provider next year. Unsurprisingly, soaring insurance premiums are being projected as a consequence of the absence of competition. Speaking of which …
              Insurance Premiums Have Increased

              While many middle- and low-income Americans get some or all of their insurance premiums subsidized by the government, people who are insured through their employers must rely on their companies to pay some of the bill. And the amounts for premiums paid by both employers and employees have risen substantially over the years.”

              The author goes on to wonder if perhaps premiums would have increased even more without the ACA. Ludicrous wishful thinking to jack up prices and then think maybe it could have been worse.

              But then the author goes on to say:

              “Fast-forward to 2016, and high-deductible plans have become standard: 51% of all covered workers, and 65% of workers in small firms, face deductibles of at least $1,000.”

              “Because co-pays have risen and high deductibles have become the norm in the Obamacare era, patients are paying more out of pocket for prescriptions than they did in the past.”

              “Because co-pays have risen and high deductibles have become the norm in the Obamacare era, patients are paying more out of pocket for prescriptions than they did in the past.”

              Oh, this one makes me laugh so hard. Obamacare made premiums and deductibles go up, but then the author desperately tries to say that maybe this was a good thing because hopefully the alternative would have been worse.

              And he makes one crucial oversight – he refuses to address the individual policy holder, who would have laughed until she fell down at being told that a $1,000 was high. Please! We have deductibles of $12,000 a YEAR now thanks all to the DNC and Obamacare. And our premiums are through the roof because we don’t have an employer hiding part of that increase from us.

              Out of all of the millions of us living in the US, it is the unsubsidized individual Obamacare policy holder that shoulders, and understands, the true cost of health insurance as a result of this boondoggle.


              1. Karen S.
                – Your family didn’t save $2500 a year with Obamacare?😏
                Bernie has “outbid” the Obamacare promise, claiming that the average family would save between $3500 and $5500 per year with MediCare for all.

        2. No kidding. I have Democratic friends and relatives that STILL try to argue with me that Obamacare was wonderful and didn’t hurt the middle class at all, and if you oppose Obamacare you hate the poor. When you tell them that most insurers have left the market, and some markets have one or zero insurers, they automatically blame Republicans, when Republicans were ineffective at slowing, let alone stopping Obamacare. They blame the GOP for the actions of the DNC. Such true believers are irrational in that one area, at least, and have completely hardened their hearts to any deleterious effects their decisions have on others.

          I can’t imagine feeling that way. If I voted for something I thought would help, and then found out it took away insurance people were promised they could keep, and make health insurance cost as much as a car every single year, I’d feel bad and vote differently next time, or want my mistake repealed.

      2. Right….that’s why the all-powerful Koch brothers were successful in their stop- Trump quest.
        If only the left had a wealthy advocate…say, a George Soros….to support their causes.
        Maybe the Democrats could even get support and a few bucks from the Hollywood crowd.
        But “everybody knows” the Senate will remain in Republican hands because of (fill in the blanks)——
        Big Pharma
        Big Oil
        The Koch Bros.
        Coca Cola Corp.
        Goldman Sachs
        The Trilateral Comission
        The Russians
        The Military Industrial Complex
        Complexes with Complexes
        Etc., Etc.

        1. Kochs have now joined up with Trump. They were unsure at he beginning.

          1. Karen S.
            – Your family didn’t save $2500 a year with Obamacare?😏
            Bernie has “outbid” the Obamacare promise, claiming that the average family would save between $3500 and $5500 per year with MediCare for all.

          2. “Kochs have now joined up with Trump”.
            Bad news indeed for billionaires like Soros, Warren Buffet, Bill Gates.
            Maybe George Clooney now, too.
            ( If the reports of his recent transaction are accurate).
            Maybe Clooney can now skip the $33,000- $350,000 per person fundraisers.
            I don’t see how these paupers stand a chance against the invincible Kochs.

    1. Some of the old moloko plus would be sure to ready you up for some of the old ultraviolence.

  8. “the Senate could flip and guarantee a moderate replacement”

    Didn’t know we were adding a joke of the day into the blood.

  9. Nominate Andrew Napolitano to the U.S. Supreme Court.
    Bring some fundamental American principles back to the Court.

  10. Oh what a tangled web we weave when first we practise to deceive.

    So you want to lie to the American people, put our national security at risk, rig an election for your favored presidential candidate and then undermine the Presidency of her opponent. Dark days indeed. Poe had it correct. You trapped yourself in your own web.

      1. Justice Holmes’ post reminded me of all those bemoaning President Trump’s selection of Justice Gorsuch and the future of the court.

  11. Thomas Sowell recalled having dinner in 1987 with some friends who knew Kennedy personally. Their assessment of the man was that he was a weak and other-directed man. Sowell’s sine qua non qualification for an appellate judge is as follows: look for any sign you can find that the candidate is not a social climber.

    Kennedy’s ‘legacy’ has been abuse of discretion in two crucial areas: insisting that laws proscribing abortion are in violation of the constitution and insisting the constitution requires whatever policy measure is fashionable in and among the gay lobby. He’s a scandal. The appellate judiciary is a scandal. The law professoriate is a scandal.

  12. I have many of the same views as Kennedy. I have seen him speak and like him as a person. The Court will miss him.

    1. That the other judges will miss him is of no interest to anyone else. All you can say in his favor is that he’s not as bad as some of the other cretins who’ve served on the court. Byron White, Wm. Rehnquist, Antonin Scalia, Clarence Thomas, John Roberts, Samuel Alito, and Neil Gorsuch are the only ones who have served on the Court in 40-odd years who had any business being there.

  13. Long time fan JT, but never posted.

    Would love your thoughts on #CNNBlackmail story.

  14. If trump appoints another justice to the court, I think that it is very likely that the US will return to the dark days when homosexuality Was a crime! The idea that it is not likely would seem to be belied by the current move to a theocratic based government where in we are all to be subject to the morality of a Pence mentality and that is dangerous to all humans! Sorry professor you are just too optimistic.

    1. If trump appoints another justice to the court, I think that it is very likely that the US will return to the dark days when homosexuality Was a crime! T

      What’s gruesomely amusing about progressives is (1) they commonly have no sense of what a normal person’s motives and lodestars really are and (2) their priority is ever the comfort and convenience of the mascot group du jour.

      Nat Hentoff is dead, Alan Dershowitz is real old, and succeeding generations of progressives mix viciousness and shallowness in about equal proportion.

    2. .Gorsuch seems to share Pence’s views on lbgqt rights. Trump indicated he would be more moderate in the campaign but that is ot proving out.

      1. .Gorsuch seems to share Pence’s views on lbgqt rights.

        Whatever franchises the state extends to sexual deviants qua sexual deviants are a matter of legislative discretion (state legislatures, for the most part). There is no constitutional provision that restricts democratic choice in such matters. Kennedy’s insistence that there is is a political fiction. We should have judges who stay in their lane and do not tell verbose lies. Anthony Kennedy is not that man.

        1. It mystifies me why people give two tinker’s damn which consenting adults want to sleep with other consenting adults. Pro tip: get a hobby, leave other people to their pleasure during this short time on earth.

          This is to intolerant homophobe sue

          1. It mystifies me why people give two tinker’s damn which consenting adults want to sleep with other consenting adults.

            Well, think harder.

            In the interim, you might ask yourself why someone has a cause of action when a landlord or businessman refuses to contract with them, hire them, or permit them on the premises? Very few service providers are monopolistic common carriers, so why are their decisions as free men subject to judicial review, discovery proceedings, &c? Is your business yours? Is your property yours? Is there some externality in those transactions the rest of humanity cannot see?

          2. It mystifies me why people give two tinker’s damn which consenting adults want to sleep with other consenting adults.

            You’re likely mystified because while you limit your thinking to two tinker’s damn, others actually give five about greater cultural issues. Because what two consenting adults do privately has not remained private. Because what has legitimately been argued as something no law should infringe, has moved, as predicted, beyond the boundaries of their own definition of happiness into the infringement of rights of others. We now see, again as predicted, that the law is being used to infringe the natural right of others to pursue their own happiness. Cultures transform and will do so, but not on some timeline engineered by the state by the force of unjust laws.

            Pro tip: No law can be just that violates the natural rights of others…period.

          3. Strange, Mark, how you accuse Susan of being intolerant while using a defamatory epithet in the same sentence, calling her “homophobe sue.” The term “homophobe” is obnoxious, like using the N word for a black person. I doubt she fears homosexuals; she probably just disagrees with the ancient sodomite culture which in our lifetime has destroyed the legal concept of marriage. For some reason, you are intolerant of that viewpoint.

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