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The Kennedy Retirement Leaves The Court Without A Center of Gravity and Grace

225px-Anthony_Kennedy_OfficialBelow is my column in The Hill newspaper on the legacy and vision or Associate Justice Anthony Kennedy.  The departure of Kennedy will leave the Supreme Court more calcified and rigid in its ideological division. Chief Justice John Roberts now assumes the role of the swing vote with a center of gravity that will likely move further to the right.  His voice was unique and often profound.  He applied a conservative jurisprudence that emphasized the protection of individual rights and identity.  Time will show that Kennedy saw a horizon for our society that we are still struggling to attain.

Here is the column:

The retirement of Justice Anthony Kennedy has been met with apocalyptic predictions of a new Supreme Court with a Trump-enhanced majority. Within hours of Kennedy’s announcement, CNN legal analyst Jeffrey Toobin described a country where bazookas might be legal, women arrested for back-alley abortions, and gays chased from stores. He even gave a hard date of 18 months for abortion being illegal in at least 20 states.

While remarkably specific in his timeline, Toobin’s dread is shared by many who saw Kennedy as a watchful moderating force on the court — the human shield protecting basic rights from an ideological attack from the right.

Indeed, Kennedy’s departure could well mean the greatest shift on the court since the move from the Warren to the Rehnquist courts. However, too much emphasis has been placed on the loss of the court’s perennial swing vote.

Kennedy was more than a fifth vote on a tally sheet. The real loss is not his vote but his voice. Kennedy was unique in his treatment of individual rights — speaking profoundly about the struggle of all individuals to maintain dignity and identity in this nation. His was a strong but gentle voice at the very center of our most divisive controversies, calling for tolerance of free expression and association. In the internecine battles of the court, he squarely planted in the middle as a constant beacon for liberty interests.

Kennedy’s legacy over 30 years on the court produced some of the most defining cases of our generation. It was Kennedy who, in 1992, joined in the plurality decision in Planned Parenthood v. Casey to preserve the constitutional right to choose. It was Kennedy who wrote the historic ruling in Citizens United v. FEC in 2010 to recognize the free-speech rights of corporations. He was the author of Obergefell v. Hodges in 2015 recognizing the constitutional right to same-sex marriage. On limiting the death penalty, guaranteeing due process for detainees, protecting free speech, and so many other critical moments, it was Kennedy who stuck the balance. Always Kennedy.

Kennedy was a bridge justice who showed that you can follow a conservative philosophy (as he did) and still be an advocate for individual rights. Indeed, Kennedy’s voice was most profound and clear when he was discussing values of privacy and dignity in the Constitution.

He saw no conflict in following a conservative approach to constitutional interpretation and defending individual rights, particularly for insular or unpopular groups. Kennedy saw the Constitution as an expression of natural-law values and not just originalist thought. That gave his jurisprudence a greater range and evolution in dealing with changes in our society and mores.

What did not change was Kennedy’s view of the Constitution as a bulwark against government and majoritarian abuse. Kennedy’s jurisprudence was anchored in the 18th-century Enlightenment philosophy of figures like John Locke and later philosophers like John Stuart Mill. Kennedy’s jurisprudence often reflected the “harm principle” of Mill who wrote that “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” He refused to accept that speech or associations or sexual orientation could constitute a harm justifying state punishment or coercion.

That powerful vision was evident back in his 2003 decision in Lawrence striking down the criminalization of homosexuality and, later, his opinion recognizing a constitutional right to same-sex marriage in Obergefell v. Hodges. In that latter case, Kennedy declared: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

Kennedy had a clarity and consistency of thought in his opinions. He did not flinch from striking down a federal ban on virtual child pornography or protecting the right to burn the flag as a protest. For Kennedy it was all free speech — not good or bad, just speech. In his decision striking down the Child Pornography Prevention Act in Ashcroft v. Free Speech Coalition, in 2002, Kennedy wrote: “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. … The court’s First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct.”

Kennedy transcended partisan expectations to reach across the court’s ideological lines to find commonality with colleagues over concepts like dignity. He stood alone in his unique articulation of a liberty interest in self-expression as opposed to more classic liberal or conservative constructs.

That vision expressed an inner transcendent meaning to the Constitution. It also reflected a deeply sympathetic view of common aspects of life. Marriage was not a licensed relationship of a state but the manifestation of “the highest ideals of love, fidelity, devotion, sacrifice, and family.” The Kennedy record amounts to a stratographic record of this country’s evolution from prejudice to tolerance, from exclusion to inclusion.

Kennedy’s often nuanced take on constitutional law is not what President Trump described when he promised to move the court to the right. Everyone understood he was referring to Kennedy and the long-awaited opportunity to replace a swing with a locked vote.

With Kennedy’s departure, the court will be left with two calcified ideological extremes — two camps that are less likely to reach shifting compromises on difficult social issues. The new court may now become more like our politics in the absence of Kennedy: more predictable and uncompromising. Opinions may become mere place-holders for a future emerging majority — as opposed to a true dialogue between jurists.

The struggle of Kennedy to strike a balance on the court was deeply reflective of the struggle of this country over the last 30 years. It was Kennedy who often stepped forward to protect our most vulnerable rights and individuals. It was his voice that reminded us of our better angels.

Perhaps the collective panic over his departure reflects our continued insecurity over our continued capacity for self-harm as a free people. However, the key lesson that Justice Kennedy leaves with us is that we are not the sum of our insecurities but, rather, of our ideals. We have the ability to transcend our divisions and find a common value in our identity as a free people. That reassuring voice will continue to reverberate in the cases that Kennedy left over the course of his brilliant career.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

184 thoughts on “The Kennedy Retirement Leaves The Court Without A Center of Gravity and Grace”

  1. “It’s the Constitution, stupid!”

    Not Kennedy.

    SCOTUS’s drama queen, convoluted and ideological machinations are immaterial.

    Either acts comport or they don’t.

    We can all read.

    The legislative branch must apply the politics.

    1. Trump deserves no court pick until the Russia Probe has concluded. Any appointee of Trump’s could be damaged goods.

      1. Peter Shill, can you tell us where in the Constitution that is written?

          1. Since when are court rules or guild rules binding on the president?

          2. Since when are “court or guild rules” binding on the Constitution?

      2. The Russia probe is a hoax and should influence nothing.

        1. The Russia probe is a hoax that fills empty minds preventing them from imploding.

        2. As I’ve said many times, Spastic, you’re the know-it-all who doesn’t want to know what you don’t know.

          1. What we know is manifest in the indictments he has secured to date. “To date” would be 23 months after the investigation commenced. (1) process crimes, (2) Russian internet trolls, and (3) Paul Manafort’s business interests (all matters pre-dating the beginning of the Trump campaign in June 2015 and pre-dating the run of months in which Manafort worked for Trump. Please note the commentary of the federal trial judge in the Eastern District of Virginia: the Manafort indictment has been a transparent attempt to get the defendant to provide evidence against Trump. Mueller’s office wasn’t prepared to actually take the internet trolls to trial and is arranging to hand the case off to a collection of U.S. Attorneys. You fancy this stew of prosecutorial abuse and public relations is authentic. There’s a reason people call you ‘Peter Shill’.

    2. What Peter Shill doesn’t mention is that billionaire Russians gave to the DNC and to Hillary Clinton.

      1. Yeah, Allan, but Hillary isn’t President, and Hillary isn’t in a position to name a judge who might ultimately determine her fate.

        1. You do realize the Supreme Court is a multi-member panel?

        2. Natacha, some of what Hillary did was possibly illegal and she actually pocketed money from the Russians and sold our country down the drain. That Trump may have met billionaire Russians at one time or another is not extraordinary. At one time or another, I have met billionaire Russians but that doesn’t mean I had criminal actions with them like it appears Hillary did.

          If Trump had done anything bad with those Russians that would disqualify him from the Presidency we would know it by now. One can always assume that something not proven might later be proven but one cannot stop the earth from revolving based on that type of assumption.

          Trump is President and President’s must act.

        3. “Hillary isn’t in a position to name a judge”– Also,Hillary no longer has the Obama/Lynch DOJ to look after her.

          1. TN re ” Also,Hillary no longer has the Obama/Lynch DOJ to look after her.” Sure she does! Sessions, Rosenstein, Wray and co all still looking after her and the Awan bros

  3. – When you first mention Toobin, you loose all credibility.

    – In fact, bazookas, rifles, automatic weapons are light infantry arms suitable for opposing a tyrannical and oppressive government. These weapons are “arms” which may be kept and borne by Americans per the 2nd Amendment (WMD are not arms and are not necessary to oppose a tyrannical and oppressive government).

    – Abortion is murder of an infinitesimally small human being in his earliest stage.

    – Homosexuals may be refused service in any private business. Discrimination is the essence of freedom. If people cannot discriminate, people cannot be free. People buys shoes, marry spouses, obtain educations, attend football games, etc. through deliberate acts of discrimination. Americans enjoy the freedoms of thought, speech, opinion, belief, religion, press, publication, assembly, socialization and every other conceivable natural and God-given right and freedom per the 9th Amendment. The enumerated right to private property, “…in the exclusion of every other individual…” per Madison, allows unfettered possession and disposition of that property. It is the government that is severely limited by the Constitution not the People. The Communist Manifesto does not hold dominion in the United States of America. Social engineering, as “Affirmative Action Privilege,” discriminatory “Non-Discrimination” laws, unfair “Fair Housing” laws, quotas, forced busing, etc., is irrefutably unconstitutional. While Americans violate the laws when they injure people and damage property, they have the right to be as comprehensively discriminating as they choose. People are obligated by the Constitution to adapt to the outcomes of freedom.

    – Kennedy’s departure cannot mean a “shift” because the Constitution has not changed by one letter. The Constitution was well written so that all people can understand its manifest tenor. The underlying ideas, not
    convoluted semantics, constitute the import of the Constitution. Those ideas have nothing to do with Kennedy. Those ideas are the property of the American People. Various judicial opinions are an indication of subjective, political and ideological machinations. What needs to change on the court is its understanding of its mission and its duty to “declare all acts contrary to the MANIFEST TENOR of the Constitution void” with the singular purpose of limiting government and assuring maximum freedom for the People. The SCOTUS should be reduced to three justices over which impeachment looms.

    – Corrective action regarding American jurisprudence and governance must be the enhancement and acceleration of the impeachment process to accommodate the burgeoning judicial malfeasance and to increase the dominion of the People through their Congress.
    _____________________________________________________

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

  4. Thank you for this moving tribute to Justice Kennedy. People are afraid because they know: 1. that Trump is a malignant narcissist, who will do literally anything for praise, especially from Breitbart/Fox News, so he’ll nominate someone they want, who, per se, is likely to be the antithesis of Kennedy*; 2. People know how the Supremes have gotten it so very wrong in the past: the Dredd Scott Decision, Plessy v. Ferguson and the Koramatsu decision. They also know the agenda of Breitbart/Fox: make abortion illegal again, to make the Evangelicals happy ** so they won’t complain about privatization (ultimately gutting) of social safety net programs, and also so they won’t oppose more roll backs of environmental protections, consumer protections and more tax breaks for the uber-wealthy. Unfortunately, if this country breaks down into serious social unrest because of a bad nominee that McConnell manages to shove through, that also will be part of Kennedy’s legacy, especially if the timing of his retirement was politically calculated to let McConnell try to force a radically conservative before the midterm elections. If it is shown that he did that intentionally, his legacy will forever have the stain of politics and stench of Trump and McConnell.

    *Trump has no ideals, other than self-aggrandizement and constant need for praise. He is no leader, so whatever it takes to get the cheering rubes to clap and cheer, and Fox News/Breitbart to keep defending him, this is what he will do. That’s something else that scare people.

    **After all, they’re doing God’s will, so if stopping all abortions comes along with severe cuts in Social Security, Medicare, Medicaid and SNAP, and we go back to air and water pollution, consumers getting cheated and massive increase in the deficit. well, that must be what God wants. They really, truly don’t realize how they’re being used.

    1. Natacha is too crude to understand the distinction between declaring the constitution does not incorporate a ‘right’ to an abortion (which is an act of judicial review, and, by the way, only reasonable) and prohibiting abortion by law, which isa discretionary act of a state legislature exercising it’s general police power. She also is unawares that the Dred Scot decision turned on conceptions of ‘substantive due process’ whose most astringent contemporary critic has been…Robert Bork.

      1. TSTD is too crude to understand that the Roe decision turned on the point at which the State has an interest in intervening in a woman’s reproductive decisions. That point is when the fetus is viable outside the body. That is the point at which the fetus acquires rights, so the State could (but is not required to) ban abortions at the age of fetal viability and beyond. Prior to that stage of development, the Constitution protects a woman’s right of privacy to make her own decision about her own body and the State has no right to interfere. The SCOTUS did not hold there is a “right” to anything other than privacy from government interference in reproductive decisions, which the Constitution protects up to the age of fetal viability. That is the Roe holding, in a nutshell.

        For those who disagree, consider this: if the government does have a right to decide about reproductive matters, in other words, to outlaw all abortions, then the government would also have the right to coerce an abortion, despite a woman’s objection. The fundamental issue is whether the government has any say-so in reproductive decisions. Roe did not hold there is an unfettered right to an abortion–rather, that there is a Constitutionally-protected right to privacy from governmental interference until the age of fetal viability.

        1. “TSTD is too crude to understand that the Roe decision turned on the point at which the State has an interest in intervening in a woman’s reproductive decisions. That point is when the fetus is viable outside the body. That is the point at which the fetus acquires rights”

          Out of curiosity, what do you mean by “viable”?

          1. Ask a gynecologist, or read the Roe decision, because they spell it out plainly. I didn’t define this as the point at which a woman’s privacy right may be curtailed, the SCOTUS did.

            2. You just provided a point in time based on the viability of the fetus without even knowing what the word viable means. In the context of what you wrote it can mean different things based on what an individual believes constitutes viability. In this case, that is your decision so I am not asking the gynecologist rather what you believe viability is.

              I find it amazing that people expound on ideas they don’t know anything about.

              1. “I find it amazing that people expound on ideas they don’t know anything about.”

                Yep. And it’s called…: Allanonsense.

                1. That is about all you can say. Your intellect doesn’t permit you to go any further than saying the same thing over and over again.

                  Actually what you are providing in the name is a title… Allan on sense. If you had any brains you would add the extra “n” so it read Allan nonsense. How in the world did you get through life being so intellectually disabled?

                  1. Keep “thinking on it.” With a little luck, maybe you’ll work it out. (This is to Allan.)

              2. I thought they were “viable” in the birth canal at c. 9 months.
                I think Bill Clinton overrode a veto to allow “partial birth abortions”.
                Also, there have been tremendous advances in treating “preemies”.
                That complicates the “viability” issue.

                1. It sure does complicate the issue especially when some of Peter Singers colleagues talk about “abortion” after a child is born. Is a one year old viable without someone else’s help? Should an animal have the same rights as a human child? Or Zeke Emanual who has a curve regarding the value of life, based on age.

                2. You bring up a good point about the advancements in medicine relating to the notion of fetal viability as being a requisite consideration as defined by the Court in Roe. In a sense we must probably move back gestation weeks from where the Court was fifty years ago to agree between current technology and the Court’s definition of vitality.

                  At some point in the future, I wonder if a correction to the definition of fetal liability might be the level of artificial life support required to maintain a neonate’s life. For example, we might in the future develop an artificial womb technology that will permit a four week fetus to be removed from the mother and develop into a normal child. Certainly a four week old fetus will never survive outside the womb and without intervention but in this example it could with the artificial womb. So, would the Court then revisit the issue and argue a compelling state interest to protect a four week old fetus from an abortion when the artificial womb is available and thereby redefining fetal viability along a continuum rather than an absolute measure?

                  1. A brilliant intervention Mr.Smith.I do not believe Blackmun,J was able to foresee all of those potential medical advances when he spent his summer of 1972 at the Mayo Clinic library conjuring up the ruling in Roe v.Wade.Assuming the development of a workable form of artificial womb technology,would the state interest in the continuation of the life of the fetus outweigh the right of privacy of the mother to terminate it’s existence.The landscape of any future case challenging the holding in January,1973 would potentially be totally different than the one confronting Blackmun,J and his colleagues.The trump card in the hands of the Pro-Life movement is not Trump but biological imperatives.

                    1. Perhaps we might see the fetus in the future declared a ward of the state since it could be incubated in the artificial womb, though the mother wished to terminate her pregnancy. That way both the state interest and the ability of the woman to maintain her fertility and reproductive rights might be in balance. Though it could be argued the financial cost to the state might play a factor if there are high numbers of these fetuses maturing to adulthood and the cost of the incubation.

        2. TSTD is too crude to understand that the Roe decision turned on the point at which the State has an interest in intervening in a woman’s reproductive decisions.

          No, the Roe decision turned on the whimsies of the 7 justices responsible.

    2. so they won’t complain about privatization (ultimately gutting) of social safety net programs,

      Natacha, appellate judges not infected with megalomania don’t claim any jurisdiction over funding-levels for welfare programs.

      1. Not talking about judges: talking about legislation the Republicans want to push through. Tax cuts for the uber-wealthy, who don’t need them, will exponentially increase the deficit, so they are already planning massive cuts to Social Security, Medicare, Medicaid and SNAP. Republicans leverage the religious beliefs of Evangelicals, by promising to abolish abortions, so they won’t oppose these broader-agenda plans that hurt more Americans at the expense of those who are already wealthy. Evangelicals should wake up and smell what the Republicans are shoveling.

    3. and also so they won’t oppose more roll backs of environmental protections, consumer protections and more tax breaks for the uber-wealthy.

      Natacha, judges not infected with megalomania don’t try to set marginal tax rates, either. Nor could they, without abusing their authority ‘oppose’ ‘rollbacks of [environmental or consumer] protections by any means other than testing administrative regulations contra statutory law.

      1. Not talking about judges. Talking about the Republican agenda to gut the EPA, Consumer Financial Protection Bureau and massive tax cuts for the very wealthy, paid for by cutting Social Security, Medicare, Medicaid and SNAP.

  5. “With Kennedy’s departure, the court will be left with two calcified ideological extremes — two camps that are less likely to reach shifting compromises on difficult social issues.”

    I don’t understand this comment by Turley. The Supreme Court is supposed to rule on Constitutional issues not make policy. They should not be worrying about their own feelings or how graceful a decision might be (“The Kennedy Retirement Leaves The Court Without A Center of Gravity and Grace”) If one wants grace go to a ballet.

    The legislative branch makes policy and provides the budgets to pay for things. The legislators are elected by the people. The Supreme Court is not. There is an amendment process to change the Constitution.

    1. Again, Prof. Turley’s cardinal principles: everyone make nice with the lawyers. And if the lawyers start dictating policy to you, you have to do what they say. Because this is a matter of some complexity. About which you should consult with your lawyer.

      1. I am not quite sure of the direction of your comment. I am also not sure of Turley’s core beliefs with regard to the Constitution. I don’t remember him ever stating how he goes about determining Constitutionality. From his examples, it appears that he strays a bit when dealing with Constitutional issues but I don’t know how he actually balances his adherence or lack of adherence in his own mind. Maybe his perceived understanding of “grace” plays a large part.

        1. Sorry but the whole premise of Professor Turley’s post was that the court would change. Something I do not believe is not in his tremendous but not soothsaying capabilities without even knowing who the candidate is. Just because it maybe a Constitutionalist one does not guarentee any shift unless of course we are saying Kennedy was a make it fit guy to which I then say; “hope and change”

          1. James, Turley obviously liked some of the decisions made by Justice Kennedy, but my question is whether or not those decisions were based on the Constitution or if Turley thought they were and if so why.

  6. While I always respect your opinions and your knowledge of law, I am even more amazed now that I know you have the power of knowing the future! You usually are more centered then to claim you know where the court will go befoe a nominee has even been put forth?

  7. The center of gravity has been gone since 2000 with the Bush V Gore case, and a proven fact that the SCOTUS can be very political. Never the less, to have any talk about Trump appointing his own jury, if he is to be indicted and the SCOTUS has to decide the case is beyond any “LAW AND ORDER”. The known facts that Trump is being investigated for obstruction or collusion has to be finished, before Trump gets to pick who will hear his case is not unreasonable. Since there is disagreement on whether a sitting President can be indicted, this alone should beyond any doubt be considered first.

    1. The center of gravity has been gone since 2000 with the Bush V Gore case, and a proven fact that the SCOTUS can be very political.

      Because if they were non-political, they’d let Barbara Pariente et al tear up Florida statutory law and order trial judges to insist canvassing boards count ballots ad infinitum until they’d found a screening standard which gave Florida’s electoral votes to Al Gore.

      1. The Florida Supreme Court followed the state Constitution that said all legal votes must be counted. The SCOTUS stopped the count. To say Florida was different in its standards, then other states would have had other states count too. And the Bush team wanted no part in that. The fact that Florida republicans threw out ballots that had Gore written on them and the checked box for Gore was wrong by Florida standards and law. The fact that republican boards counted past due ballots with dates after the election is a fact. All legal votes must be counted. Had it gone the other way, I would still have questions.

          1. “O’Connor Regrets Bush v. Gore”

            Excerpt:

            More than 12 years after the fact, retired Justice Sandra Day O’Connor said it was probably a mistake for the Supreme Court to hear Bush v. Gore and anoint George W. Bush as president of the United States.

            “It took the case and decided it at a time when it was still a big election issue,” Justice O’Connor told the Chicago Tribune editorial board on Friday. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’”

            She continued: “Obviously the court did reach a decision and thought it had to reach a decision. It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”

            The result, she allowed, “stirred up the public” and “gave the court a less than perfect reputation.”

            1. She just regrets not propagating another five-part balancing test.

              News organizations rummaged through those paper ballots with their hanging chads and dimpled chads and could not contrive a sorting criteria which gave a majority of Florida’s popular ballots to Mr. Gore.

              1. If a chad hung they discounted it, Florida law said the intent of the voter must be counted. Not to mention the purges of 80,000 voters that had the same name as a convicted felon. The “Safety Checks” by state police in heavy black areas. Jeb was on his A-game thats for sure.

                1. Based on the Liberal news media that recounted the ballots, Gore lost. Gore’s lawyers wanted to play the game of selectivity which was improper. There were a lot of irregularities that mostly seemed to favor Gore so he likely would have lost based solely on the correction of those irregularities.

                  The left doesn’t want honest voting because they believe that dishonest voting provides them additional votes. Stop complaining. If we had a better system of voting that the left won’t permit there wouldn’t have been doubting as to who won the election.

                  Trump won the most recent election and the left is still hollering that he wasn’t elected fairly. My suggestion is that people not play cards with leftists. They cheat.

                  1. “My suggestion is that people not play cards with leftists. They cheat.” — so says Allan

                    And people who say such things are often projecting.

                    1. That might be true, but not in the context of my particular remark. It is, however, nice to hear you say something new. Let us hear more of your dazzling intellect.

                2. FishWings, procedures for preparing and promulgating voter rolls are delineated in state law. In New York (when I was involved in local politics), you were purged automatically if you failed to cast a ballot for four years. Unless Florida’s voter registration forms are very spare, they have multiple bits of information that can be cross-checked on lists of convicted felons.

        2. And, as a result, we got the Iraq war and the worst recession since the Great Depression. Thank you, Supreme Court. I’m certain they don’t feel the blood of those Americans killed and maimed on their hands, but they should, because they bear some responsibility.

          1. And, as a result, we got the Iraq war and the worst recession since the Great Depression. Thank you, Supreme Court. I

            Natacha’s fanciful alternative history has Albert Gore somehow not faced with the trilemmas the Bush administration was in 2002 (and of which the Congress was aware, which is why the Iraq War was authorized). She also fancies the splendor of Gore’s presence was going to prevent bubbles from forming in the real estate sector, prevent the Financial Products Unit at AIG from selling $400 bn in credit default swaps without hedging, and prevent Freddie Mac from fueling the whole mess by slashing underwriting standards. Natacha also thinks that in this alternate world, the Democratic Party insiders who ran Fannie Mae and Freddie Mac would have been the soul of prudence under Pres. Gore.

          2. Blame Obama’s bad policies for the recession being worse than it should have been. Then congratulate Trump on turning things around.

            “I do think at a certain point you’ve made enough money.” — Barack Obama

            “We can’t drive our SUVs and eat as much as we want and keep our homes on 72 degrees at all times … and then just expect that other countries are going to say OK. That’s not leadership. That’s not going to happen.” — Barack Obama

            “I think when you spread the wealth around, it’s good for everybody.” — Barack Obama

            I think Americans are happy receiving a bonus or tax reduction. I think mother’s like the idea of sharing the driving with other mothers in their SUV’s. I don’t care what other countries think I should keep my thermostat at. Obama may have cared, but I don’t especially when I see Obama and all these other global warming alarmists flying around in their private planes.

            1. Blame Obama’s bad policies for the recession being worse than it should have been. Then congratulate Trump on turning things around.

              Production levels hit bottom in May 2009. Not much Obama could have done to make them turn around sooner. Casey Mulligan has delineated what the main problems with the Obama administrations handling of the recovery were: mainly a grab bag of measures which inhibited a labor market recovery.

              1. DSS, his policies prolonged the recession. To a great extent, his policies inhibited a labor market recovery and his spending did very little good. There is no way Trump could have orchestrated such a rapid dramatic improvement in our economy if it weren’t for Obama policies holding our economy down.

                If you believe his policies weren’t bad for the economy, so be it.

                1. Allan, no. The recession ran from December 2007 to May 2009 according to NBER criteria. He didn’t ‘elongate’ it.

                  If you believe his policies weren’t bad for the economy, so be it.

                  For crying out loud, actually read what I say every once in a while.

                  1. According to NBER criteria, the recession lasted through those specific dates. Many consider the recession to have lasted longer. If you wish I will accept your dates stating that economic recovery was weaker than it should have been and the economy left for Trump should have been at a significantly higher level.

        3. The Florida Supreme Court followed the state Constitution that said all legal votes must be counted.

          The Florida Supreme Court through out precise procedures delineated in valid Florida statutory law, much to the horror of three of the 7 justices on the court.

          You keep promoting this fraud that there was something wrong with the tabulations done. There wasn’t, and every effort to demonstrate Gore one the vote making use of consistent tabulation procedures failed.

        4. Agree FW. How about DWS’s election troll who disappeared Tim Canova’s votes. Florida totally corrupt

    2. No hearings should be held until after the midterm elections per The McConnell Rule.

      1. Obama had two appointments to the Court confirmed without incident and was told he wasn’t getting a 3d 10 months before leaving office. Trump’s been in office for 17 months.

        While we’re at it, Mr. Garland was left in peace by the Republican caucus. Mr. Bork was subject to a hideous campaign of libel and slander by every element of the Democratic Party bar Lloyd Cutler.

        1. So where does it say that a President can only have so many appointments? Trump team is under investigation. Mr. Garland was left in peace, they would not even talk to him. President Obama was under hideous campaign of libel and slander for 8 years under Republicans, bar none. And you better look up that mister nice guy Mr. Bork, he would have had a huge part in the cover-up of Watergate.

          1. Where does it say the Senate is required to give advice and consent to a president’s nominees? The Senate exercised the discretion which was it’s due. You’re all butt-hurt because the result was inconvenient to you.

            President Obama was under hideous campaign of libel and slander for 8 years under Republicans,

            From cranks and combox denizens, about whose opinions scarcely anyone cares. The man had wretched political skills, so couldn’t cut deals with the opposition or even bring himself to talk to them over bourbon. He had all of Jimmy Carter’s shortcomings in that respect but none of Jimmy Carter’s engineer’s acumen and none of Mr. Carter’s evangelical ethical scruples. However, he was treated like kid gloves by the media and his administration got away with stunning misconduct while street level Democrats babbled on about a ‘scandal-free’ administration. And, around these parts, you have Marky Mark all but volunteering to fellate the man and Peter Shill infuriated when you offer a precis of BO’s personal biography, which really is not flattering. The talent partisan Democrats have for manufacturing historical fiction is most amazing.

            1. Spastic: I agree that Obama had a tendency to ‘lead from behind’ at times. And he could be frustrating in that regard. The Merrick Garland nomination may have been one of those moments. It didn’t seem like Obama really tried that hard.

              I would have told Democrats to just go ahead with hearings whether Republicans took part or not. And if Republicans objected, I would have told them to take their objections ‘to the court’. In other words, I would have put the onus on them to stop the hearings.

              But this idea that the Obama administration got away with “stunning misconduct” is nonsense. The so-called IRS ‘Scandal” and Benghazi were manufactured at Fox News headquarters on Avenue Of The Americas.

              Furthermore this notion that the media treated Obama with “kid gloves” (presumably because he is Black) is ridiculous. During Obama’s first term the media gave far too much deference to so-called ‘fiscal hawks’. They never deserved the level of coverage they got.

              If anything The Tea Party movement was treated with kid gloves. For months the media portrayed it as a spontaneous uprising. When in reality the movement was a Koch Bros production right from the very start. That’s how it rose out of nowhere; with Koch Bros funding! Yet the media allowed the Koch Bros to remain largely obscure during Obama’s first term.

              1. But this idea that the Obama administration got away with “stunning misconduct” is nonsense. The so-called IRS ‘Scandal” and Benghazi were manufactured at Fox News headquarters on Avenue Of The Americas.

                You utter bald-faced lies like this. Lois Lerner didn’t take the 5th in front of a congressional committee and engage in PR games because she had nothing to hide, and she had a history of this sort of misconduct at the Federal Election Commission. The IRS wasn’t playing hide the ball with its own Inspector-General because it had nothing to hide either. Eric Holder assigned the case to an Obama donor at his corrupted Department of Justice and then buried it. Prof. Paul Caron did yeoman work cataloguing the scandal throughout.

                2. It turned out the IRS was flagging certain ‘liberal’ groups, in addition to conservatives. That part of the story was lost even in the mainstream media. And the IRS was right to flag the groups they flagged. They were abusing charity status. That part of the story was lost in mainstream media. The real scandal was ‘lack’ of scandal. The investigation was a Republican attack on the IRS, a non-partisan agency. That was the real scandal. A major party bullying a government agency on behalf of conservative activists.

                  1. More BS from Peter Shill. Very few LIberal groups were hit but a lot of conservative groups were.

  8. IF COUNTRY MOVES IN ONE DIRECTION..

    WHILE COURT MOVES IN ANOTHER..

    TRUMP-APPOINTED JUSTICES ARE SURE TO BE LOATHED

    Millennials will be the ‘establishment’ generation within the next 10 years. And they aren’t conservative. Millennials came of age during the Great Recession; a period when the middle class was struggling to stay afloat. Quotes from Ronald Reagan and ‘free market’ propaganda mean nothing to Millennials.

    Furthermore Millennials view Donald Trump as absolutely toxic. From their perspective Trump represents the ‘worst’ of America. A nation of racist, small town Whites clinging to God and guns. Mean-spirited people who have trouble denouncing Nazis. To Millennials ‘that’ America is as uncool as it gets!

    Trump’s appearance alone is toxic to Millennials. Think about it: ‘A bloated old man with dyed-blond hair and orange make-up’. To Millennials, Trump is the Joker from “Batman” comic books. Trump sounds like the Joker; forever dissing people. A nasty old gas bag whose facts are never straight. Few under 40 today will remember Trump in a positive light.

    Trump, in fact, will more than likely leave office under bad circumstances. How can he not? Half the country already thinks Trump is a stooge for Putin. An impression Trump foolishly reinforces at almost every turn.

    But aside from Russian ties, Trump is flirting with a trade war. And that, more than anything, will threaten his base. An economic downturn could, in short order, melt Trump’s base. A fragile 40% approval could drop under 30% when a recession hits. And current indicators suggest the strong likelihood of a not-too-distant downturn.

    Therefore when Trump leaves, under bad circumstances, everyone linked to him will suffer blowback of some kind. And that will include Trump’s picks to the court.

    If a Millennial-led country is hamstring by severely conservative justices, there is sure to be conflict. Popular sentiment can’t be moving in one direction while the court counters in reverse. If that happens Trump-appointed justices will find themselves the objects of great hatred.

    2. PH re “Furthermore Millennials view Donald Trump as absolutely toxic.” Many do that’s true. But many hate the Establishment Dems too so the party better start changing. Getting rid of “Super delegates” and actually developing a platform would be a great start.

  9. Someone buy Granny G a set of roller skates and show her the door. I don’t think she’s capable of making a decision on what size depends to wear.

    1. The Great Zambini – Granny promised to move to New Zealand if Trump was elected. She, like David Benson, Makes Stuff Up.

        1. David Benson owes me five citations (one from the OED) and the source of a quotation, after five weeks – Take responsibility for your own actions or inactions. Don’t blame it on others.

  10. Kennedy was appointed by Ronnie RayGun over 30 years ago. He is 81. That is not old. The other Court members do not like him all that much. He was neither right. left, or middle. He was muddle.

  11. I follow the supreme court decisions very closely and Kennedy at times has shown a vision and but the most recent decisions have shown a lapse into following the far right and ruling for the big and the large and dumping on the individual. Citizens United and the gutting the voting rights act are as low as you can go, but your personal desire to find a secure income on the Fox channel often shows up in your columns.

    1. lapse into following the far right

      The ‘far right’ thinks that elected officials make public policy constrained by enumerated privileges and immunities of citizens. This is unacceptable to J. Noe, who fancies that only People Like Us make the decisions.

  12. I have wondered why Kennedy quit now. I have wondered if he is losing the mental capacity to do the job. Then we find out that it’s very possible that Donald Trump colluded with Supreme Court Associate Justice Neil Gorsuch and the sons of Associate Justice Anthony Kennedy to convince Justice Kennedy to retire.

    The younger Mr. Kennedy [Justin] spent more than a decade at Deutsche Bank, eventually rising to become the bank’s global head of real estate capital markets, and he worked closely with Mr. Trump when he was a real estate developer, according to two people with knowledge of his role. During Mr. Kennedy’s tenure, Deutsche Bank became Mr. Trump’s most important lender, dispensing well over $1 billion in loans to him for the renovation and construction of skyscrapers in New York and Chicago at a time other mainstream banks were wary of doing business with him because of his troubled business history. [multiple sources]

    1. bettykath – there has been serious talk that Kennedy would retire at the end of this term as far back as last summer.

    2. Seems the relationships among the Trumps, Kushners, and Kennedys are deeper.

      ” there is no doubt that there was a direct business relationship between LNR and Kushner Companies at the time Justin Kennedy and Jared Kushner were both CEO. Even the future President was aware of the deal and commented on its respective merits.”

      1. “Seems the relationships among the Trumps, Kushners, and Kennedys are deeper.”

        I guess it is time for the left to libel another good name, Justice Kennedy. Like the French Revolution, there is no end to the madness until it consumes itself, opening the doors for a dictator.

  13. Where did the concept of judges come from? Israel! A Samson & Samuel type will be nominated.

    Judges Of Israel Length Of Rule Verses

    1. Othniel 40 years (Judg 3:9-11)

    2. Ehud 80 years (Judg 3:15-30)

    3. Shamgar Unknown (Judg 3:31)(Judg 5:6)

    4. Deborah/Barak 40 years (Judg 4:4-5:31)

    5. Gideon 40 years (Judg 6:11-8:32)

    6. * Abimelech 3 years (Judg 9:1-57)(2 Sam 11:21)

    7. Tola 23 years (Judg 10:1-2)

    8. Jair 22 years (Judg 10:3-5)

    9. Jephthah 6 years (Judg 11:1-12:7)

    10. Ibzan 7 years (Judg 12:8-10)

    11. Elon 10 years (Judg 12:11-12)

    12. Abdon 8 years (Judg 12:13-15)

    13. Samson 20 years (Judg 13:1-16:31)

    14. Eli 40 years (1 Sam 1:1-4:18)

    15. Samuel 12 years (app) Until Saul made king

  14. This is the best writing I’ve yet to read from Turley.

    Therefore, no comment.

    1. L4D:
      I found it well-written but fluffy. The “better angels” comment needed some historical centering like adding Lincoln’s complete thought “of our nature.” The “sum of our insecurities” sentence was a tad insulting to many of us who view the country as being a lot stronger than some dazed and confused teenager worrying about his prom date. I found the headline a tad hyperbolic as I explained in my commentary supra.

      1. Nevertheless, and in keeping with yet another definition of grace, I wouldn’t want to discourage Turley from putting more effort into his writing. BTW, men without chests mostly means men with “heart.”

  15. Loss of grace? Well, Granny is still wearing a doily isn’t she? As for a center of gravity, I’m not sure what that means. Roberts is a moderate flittering to either ideological wing when it suits him. Kennedy did write some big decisions but he blundered in Citizens United to accord rights to a thing rather than a person and insured advancement of the corporist ideas. His proabortion decision seems destined for modification to the delight of prolifers. And his same sex marriage ruling is just as controversial spurring unintended consequences as seen in the Colorado baker’s case where legal tolerance is weaponized as a demand for social approval. All in all, a good Justice with a mixed legacy but hardly the Court’s “indispensable man.”

    2. From Merriam Webster, Definition of grace:

      1 a : unmerited divine assistance given to humans for their regeneration or sanctification

      b : a virtue coming from God

      c : a state of sanctification enjoyed through divine assistance

      There are another eight definitions given besides the one above. I suspect that Turley may be attributing 1 b to Kennedy.

      1. I can think of a lot of adjectives for government employees. The last one I would use is “graceful.” That word is reserved for Ginger Rogers and the incomparable Peggy Fleming.

        1. So you don’t like the infamous “meaning of life” passage, either. I think that might be one of Turley’s favorites.

            1. L4D enables David Benson – Cyd Charisse was the meaning of my life for a while. 😉 She was replaced by Ann-Margaret. 🙂

                1. L4D enables David Benson – who did you have plastered on your walls? 😉

                    1. L4D enables David Benson – to what end? This could explain a lot. 😉

    3. mespo – I am going to agree with you. Roberts’ vote is now the squishy vote. The problem with being the squishy vote is that you actually control the court and I do not know if Roberts has the rigor to stand up to the right. He knows RBG is going to be gone soon, he just has to wait her out.

      1. Roberts is playing the long game. The problem is that Granny is playing the longer game. There should be mandatory retirement for all government employees at say 75.

          1. L4D enables David Benson – right now the DOJ/FBI are playing the long game on documents release. If they can hold out long enough, maybe the Democrats will be in power.

            1. Rosenstein said his people are working just as fast as they can. The Congressional Republicans are not going to get anything that was presented to a grand jury. Since that’s what they really want, it doesn’t matter how long they control the subpoena power.

              1. L4D enables David Benson – they have a week to put up or shut up.

                1. Congressional Republicans are never going to shut up. That’s why it’s a non-binding resolution. And nobody who is not a defendant at a criminal trial can compel the discovery of evidence presented to a grand jury. If the grand jury evidence had been previously classified, then it would have been summarized for presentation to the grand jury or an agent of the original classification authority would have given sworn testimony in lieu of the documentary evidence. Congressional Republicans will not violate grand jury secrecy no matter how badly their appetite makes them just taste it.

        2. mespo – would not apply to Constitutional employees. SCOTUS overturned our term limits on those grounds.

  16. His voice was unique and often profound. He applied a conservative jurisprudence that emphasized the protection of individual rights and identity.

    Actually, he fancied himself the tribune of the homosexual population on the court and we’re saddled with travesties for that reason. Worse, we’re stuck with Roe v. Wade on account of Kennedy and O’Connor. Many years ago, Michael Kinsley noted that in Washington, people’s reputations tend to expand – like a gas – to fit the offices they occupy. At the time Kennedy was appointed, Thomas Sowell had a dinner conversation with friends who knew Kennedy personally. They didn’t think much of him as a human being. Man without a chest. Dr. Sowell has composed a body of topical commentary slicing up Kennedy, finding in him an exemplar of what happens when weak and other-directed men are put in positions where they do not belong.

    There may come a time when we restore our constitutional system and but the bar (and especially the appellate judiciary, the law professoriate, and the shallow and smart-assed clerks the latter manufacture to assist the former) firmly in its place. And Anthony Kennedy will be recognized for what he was.

    1. You raise a intriguing point about “men with no chests.” Do you have any cites to Sowell’s commentary? I didn’t see much on Google or it was buried by the retirement news..

      1. C. S. Lewis wrote a book by that title. IIRC, Lewis found fault primarily with the so-called New Criticism that followed in the wake of Fraser’s “The Golden Bough.” However, many other targets drew Lewis’ ire including advertising, marketing, academics, politicians in general and the one after Anthony Eden in particular. You know. What’s-his-name. Yeah. That guy.

        1. One of Lewis’ best lines: “We make men without chests and expect of them virtue and enterprise. We laugh at honour and are shocked to find traitors in our midst. We castrate and bid the geldings be fruitful.”

          1. It seems to me that if “We castrate and bid the geldings be fruitful” that the men “with no chests” would have even greater concerns and problems than having “no chest”.

            2. Atlee took over from Churchill in 1945. Eden was PM from 1955 to 1957. Macmillan took over from Eden in 1957. “The Abolition of Man” was first published in 1943. The pinball-jukebox is on the fritz as usual.

      2. Memory check: “Men Without Chests” is the title of the first chapter of “The Abolition of Man” by C. S. Lewis.

      3. Sowell’s columns are archived at Townhall and Jewish World Review. The set covers from about 1998 to his final retirement in 2016, IIRC.

  17. The Supreme Court functions to see that the Constitution and other sacred texts are applied as they were intended. This is an impossible task to perform perfectly as what was intended is open to the ideological bent of today and not the times when the texts were written. To some degree the court must reflect the perceptions of the majority of the time in deciding when the ‘harm principle’ prevails over individual rights. Giving individual rights to corporations has certainly harmed the democracy and enhanced the oligarchy which is the direction to dictatorship.

    All Americans can hope for in light of this tragedy of an administration that clearly states that it will fill the court with those that will serve the minority is that regardless of their cherry picking, the law as it is evolving in today’s society will prevail.

  18. IF COURT IS SEEN AS RUBBER STAMP..

    FOR REPUBLICAN PRIORITIES..

    AN ENTIRE GENERATION WILL VIEW IT WITH CONTEMPT

    The Republican party is an aging, White male dominated institution no longer reflective of young America. Therefore young America will lose all faith if the court rules every time in favor of conservatives. Loss of faith could make the court an object of derision; breeding intensive cynicism. Such a trend could undermine ‘all’ Federal courts.

    1. Yep, George Soros and Bernie Sanders are getting younger by the day! LOL, And lets not forget those old democrat white women either. Shilling for any party is very unbecoming. Especially a socialist one.

          1. Dannen Smith – if it doesn’t make you a eunuch, you at least start singing soprano.

    3. The Republican party is an aging, White male dominated institution no longer reflective of young America.

      The ‘hurry up and die’ discourse in the Democratic Party is just so appealing.

      Peter Shill, you evidently didn’t notice there have been rapid shifts to and fro in the balance of opinion from one bloc of cohorts to another. Sometimes you’ll benefit from this (as you did during the period running from 2000 to 2008) and sometimes you lose (as you did from 1976 to 1984). Votes are votes. There isn’t any extra special luminescence in that vote you got from the 1985 cohort not present in that vote you didn’t get from the 1965 cohort or in that vote you quite likely will not get from the 2005 cohort.

      If the Courts would like to keep the respect of the public at large, they can do what they’re supposed to do, which is to defer to democratic choice unless there is clear constitutional warrant not to. Liberals expected the court to impose by judicial ukase policies liberals prefer. By and large, you got what you wanted, for all the whining we hear about the occasions when you didn’t (Bush v Gore, of no l/t consequence, Heller, and Citizens United). Well, the net result of that is that no one who hasn’t imbibed the liberal Kool-Aid has much respect for judges. Good show.

      1. So and so said, “The ‘hurry up and die’ discourse in the Democratic Party is just so appealing.”

        So you harbor no ill will toward Ruth Bader Ginsburg. And all that stuff yesterday about Grandma Nancy was just all that stuff yesterday. Every day is a new day on the blawg. Forget about Aricept.

  19. Wow, comprehensive easy read and nice tribute to his legacy. Obviously he could have continued for many more years so it leaves some holes that can only be filled with speculation for now.

    I see some contradiction in the article I would like to better understand. If he was such a pragmatic person and you believe now the court will be predictable why would he leave it like that when he could as I said, continued. I think he was seeing something behind the closed doors about the mix and future of court that bothered him. I have tweeted I believe the recent Sotomayor dissent gave us a lens into why he chose now. It was a very activist opinion far outside the lines of constitutional. I don’t think it’s a stretch to say she’s an activist disguised as a Judge. I would counter an activist with opposing activist so maybe his thought was if Trump were to put hard right conservative thinker on the court it would be more of a balance than we might think as Sotomayor and others that border activist rather than constitutionalist can be very persuasive.

    You gave him such high praise and it seems deservedly then showed him back of hand implying his departure will leave court more calcified rigid uncompromising ideological extremes less likely to reach shifting compromises.

    As far as what Toobin is saying and echoed by others I’m at a loss of words to understand that unless they are parlaying Putin and only desire to create chaos because they loathe Trump or some sort of personal gain. Whatever the reason they are not based on past history as all know the conservative appointments have been more centrist or even left of center.

    1. The Korematsu case that solidified the Japanese interment was racist and a shameful decision (and not the only one). Sotomayor’s dissent laid out the obvious racism of the travel ban in the same vein as the Koramatsu decision. It wasn’t activism, it was an attempt to inform us of the court’s disgraceful decision with which she strongly disagreed. Kennedy, the so-called purveyor of personal rights, missed this one.

        1. Japan was torturing and slaughtering Americans in the Pacific theater.

          Japan was torturing and slaughtering Chinese in China.

          Japan was violent, brutal, atrocious and heinous.

          Japan had potentially patriotic fellow Japanese inside America.

          War is Hell.

          Combat is a Mother—-er!

      2. Please edify us as to the Article and Section of the Constitution that denies the right and freedom of thought, speech, promulgation, communication, belief, opinion, assembly, socialization, discrimination and racism to Americans. Please do not cite erroneous, illicit, post facto and unconstitutional “laws,” “decisions” and “precedents,” all of which await overturning.

        1. George, your right to freely to express racist views does not grant the law, itself, the right to enact, to enforce, nor to adjudicate racist views.

  20. I’ve seen a few others mention the same concern. Just in passing one often voiced solution was the Chief Justice being not only the leader but the center gravitas you mentioned. In the past few months I had come to the same conclusion. Why not the Chief Justice? In the military that was who we looked to first and in this case it’s an old method to ask the junior first for opinion or in this case vote The senior going last.

    So that said I shall wait to see what happens as will the rest of the world.

    PS Many in the different blogs named Gowdy Are there no others like him?

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