“Correcting The Error”: Did Kennedy Cut His Own Tow Line In His Final Decisions?

1599px-Supreme_Court_of_the_United_States_-_Roberts_Court_2017Below is my column in the Washington Post on the implications of the resignation of Associate Justice Anthony Kennedy and his own decisions setting aside prior precedent.  Indeed, Kennedy’s last week before announcing his resignation reenforced the very arguments that could be used by a new conservative majority to strip away his legacy.  Indeed, Kennedy spent the last week eagerly sawing away on the branch on which he and his legacy rests.

Below is the column:

For 30 years, one voice has rallied Supreme Court justices on the left and the right : that of Associate Justice Anthony Kennedy. Liberals rejoiced in his decisions barring the execution of minors, recognizing a constitutional right to same-sex marriage, defending free speech and protecting legal abortions. Conservatives revered iconic decisions like Citizens United (protecting the rights of corporate speech) and Gonzales v. Carhart (upholding a federal law that criminalizes partial-birth abortions).

Kennedy’s jurisprudence reflected a unique mix of libertarian and natural-rights elements. To him, the Constitution may not have been the “living” document embraced by his liberal colleagues, but it evolved in its application to new forms of expression and association. That evolution often meant discarding prior doctrines and the time-honored judicial norm of stare decisis — the notion that courts should “stand by things decided.” Absent significant changes in the underlying law or conditions, courts avoid overturning precedent in the interests of institutional consistency and integrity. Kennedy’s cases should rest comfortably within that cocoon of tradition. Indeed, at one time, Kennedy insisted that “the whole object of the judiciary is to ensure stability, continuity, and so we pride ourselves on the fact that there is little change.”

But contained in his long tenure, and in many of his most historic cases, is an occasional disdain for precedent; his most important rulings were built on the ashes of prior decisions. In Lawrence v. Texas, for example, Kennedy tossed out the nearly two-decade-old ruling in Bowers v. Hardwick, citing changes in legal and social views. “Bowers was not correct when it was decided, and it is not correct today,” he wrote. “It ought not to remain binding precedent.” In June, he advanced his attack on stare decisis even further, authoring a 5-to-4 decision that cavalierly dispensed with a major 1992 tax precedent. Then he signed onto a majority opinion this past week overturning an important 1977 case about union dues. Kennedy began his career standing by things decided but ended it creating new doctrines.

Unwittingly, Kennedy may have crafted the perfect weapon for activist judges. His historic rulings may stand the test of time. But if any of his major opinions are voided by future courts, the weapon may not bear the fingerprints of his more conservative replacement but rather, in a strange way, his own.

In the recent South Dakota v. Wayfair decision, Kennedy wrote for a 5-to-4 majority that states may tax online purchases. The court’s previous standard, from Quill Corp. v. North Dakota in 1992, allowed state taxation only where a business has a physical presence — a paradigm that guided states and Congress for 16 years, until Wayfair . Kennedy dismissed the notion that he should follow the earlier doctrine in the interest of institutional consistency, quoting a 2009 opinion that “stare decisis is not an inexorable command.” Given the court’s shifting interpretation of the Constitution’s commerce clause, he said, “the Court should be vigilant in correcting the error.”

On Wednesday, Kennedy signed on to yet another opinion driving a stake into the heart of stare decisis. In Janus v. AFSCME Council 31 , the majority set aside a precedent established in 1977 in Abood v. Detroit Board of Education . In that case, the court upheld the constitutionality of requiring nonunion workers to pay dues to unions that negotiate on behalf of all workers. Justice Samuel Alito’s majority opinion in Janus declared Abood “poorly reasoned” and said the doctrine of stare decisis is “weakest” when deciding matters of constitutional law (as opposed to statutory interpretations). By joining the majority, Kennedy endorsed the view that a past case, such as Abood, can be set aside based on the “quality” of its “reasoning.”

The problem for Kennedy: That “weakest” application of stare decisis could be applied to many of his most important decisions, which turn on his view of inherent rights contained, but not always enumerated, in the Constitution. Rejecting the notion that stare decisis is an “inexorable command” and downgrading it to a pliable consideration will allow reversals of his opinions. Just as the court could set aside the 1992 decision in Quill Corp., a more conservative successor could find that equally corrective measures are needed for Kennedy’s opinion (with Sandra Day O’Connor and David Souter) in Planned Parenthood v. Casey , the 1992 case preserving the right to abortions.

The uncomfortable fact is that Kennedy’s legacy is as fragile as it is immense. Many of his rulings were decided by a one-justice margin: He supplied the critical fifth vote upholding the right to burn the American flag in Texas v. Johnson in 1989, declaring, “It is poignant but fundamental that the flag protects those who hold it in contempt.” He was with the 5-to-4 majority in Kennedy v. Louisiana (2008), which said convicts could not be put to death for child rape. In the 5-to-4 Boumediene v. Bush ruling (2008), he afforded Guantanamo detainees basic due process protections. Only five justices voted to decriminalize gay sex in Lawrence v. Texas (2003). The same number found a right to same-sex marriage in Obergefell v. Hodges (2015).

With his legacy dangling by a single vote — his own — Kennedy advanced views that were not necessarily shared even by some of the justices who joined his opinions. He fought for decades to create a controversial constitutional “right to dignity,” for instance. The right to choose abortion, he wrote in Casey, is based on “personal dignity and autonomy,” which “are central to the liberty protected by the Fourteenth Amendment.” He elaborated on this concept in a variety of later cases involving issues from gay rights to prisoner rights. In declaring a constitutional protection for same-sex marriage, Kennedy did not emphasize equal protection but rather esteem: “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

The idea of a constitutionally protected right to dignity infuriates many constitutional textualists on the right. For them, this is a creature of Kennedy’s imagination, not the Constitution. If Trump’s next court nominee doesn’t share Kennedy’s view (which he or she is unlikely to do), his replacement might wind up citing Kennedy’s own words in Wayfair to scrap “equal dignity” as any kind of legal standard.

The risk of something like that is even greater after Kennedy and his colleagues effectively punted, in their June decision in Masterpiece Cakeshop v. Colorado Rights Commission, a case in which a same-sex couple was denied a wedding cake by an observant Christian baker. Rather than resolve the conflict between free speech and anti-discrimination laws, the court sent the case back to a lower court with an ambiguous demand for reconsideration. If a future court decides to hear Cakeshop, the justices would have a ready-made opportunity to dispense with the dignity rights of LGBT consumers.

In fairness to Kennedy, there are strong arguments against stare decisis, which seems more often honored on the court in the breach. Dissenting justices on the wrong side of a 5-to-4 split often lament that precedents should be respected. (In Janus, Justice Elena Kagan called Kennedy and his colleagues “black-robed rulers” who “subvert[ed] all known principles of stare decisis.”) Kennedy’s opinions reflected changes not just on the court but in society at large, and his rulings were hardly the only ones to do this.

Of course, Kennedy doesn’t just have a couple of cases at stake. Much of his legacy is in the balance, and in his final week he offered his strongest support for the rationale that could undo it. At 81, he not only provided President Trump with ample time to secure a more conservative nominee but provided that nominee with ample means to discard his signature rulings.

Kennedy once said, “Sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line.” This is certainly one of those moments.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

114 thoughts on ““Correcting The Error”: Did Kennedy Cut His Own Tow Line In His Final Decisions?”

  1. I’ve read that Gloria Allred already has a client ready to accuse the next Supreme Court nomine of sexual assault. Even if it’s a woman.

      1. David Benson owes me five citations (one from the OED) and the source of a quotation, after six weeks – you are the king of not citing your claims. I would not be claiming anyone else was Making Stuff Up.

          1. David Benson owes me eight citations (one from the OED) and the source of a quotation, after six weeks and needs to cite all his work from now on. – I think the preface says it all. 🙂

              1. David Benson owes me eight citations (one from the OED) and the source of a quotation, after six weeks and needs to cite all his work from now on. – outside your field of expertise.

                1. Insanity is repeating the same behavior expecting a different result. Paul C Schulte demonstrates the principle.

                  1. David Benson owes me eight citations (one from the OED) and the source of a quotation, after six weeks and needs to cite all his work from now on. – one of the keys to behavioral psychology is patience. I have patience.

  2. Jon: there is no such thing as “partial birth” abortion. This is a conservative phrase intended to be inflammatory and implying something like murder. There is also no such thing as “corporate speech”. This was just a means to clear the way for conservatives to outspend any candidate who opposed their agenda by using a corporation to make political contributions. If a corporation, being a legal fiction cannot vote, then it shouldn’t be able to make political contributions. Corporations, especially with big issues at stake, can always outspend individuals, and their agenda is always: roll back consumer protections, roll back environmental protections, tax breaks tax abatements, government contracts, special deals on postage, and so forth.

    1. Natacha, of course there is such a thing as “partial birth abortion”. Google it and you will find that it describes the situation of bringing an unborn down the birth canal, and before complete birth, the “doctor” inserts a needle into the skull of the unborn and sucks out its brains. It is therefore born dead.
      You may not like the common term, but to deny it would be like saying there is no such thing as dandelions, because they are Taraxacum.

    2. This is a conservative phrase intended to be inflammatory and implying something like murder.

      There is such a thing. It is murder. What’s of special interest about it is that it’s practiced even though there is no way to evade or sugar coat what’s going on.

      1. Spastic would cut all safety nets to the poor and elderly. Spastic thinks healthcare is only for executives. But spastic is totally pro-life on abortion. Go figure. It sounds like a contradiction.

        1. A man said to the universe:
          “Sir, I exist!”
          “However,” replied the universe,
          “The fact has not created in me
          A sense of obligation.”

          Get over yourself.

          You are owed one thing by the rest of the word – the reciprocation of your respect for their equal rights.
          That is it.

          You are not entitled to the labor or anything else of another for your own benefit.

      2. Spastics, false. Murder is a legal concept. Abortion is medical. I remind you that most abortions are spontaneous and if occur late enough to be noticed are called miscarriages.

        1. David Benson owes me five citations (one from the OED) and the source of a quotation, after six weeks – citation is needed and it cannot be from Planned Parenthood.

          1. Learn some medical science, indeed basic biology, on your own.

            1. David Benson owes me eight citations (one from the OED) and the source of a quotation, after six weeks and needs to cite all his work from now on. – this is way outside your field, still need that citation.

        2. Spastics, false. Murder is a legal concept. Abortion is medical.

          I’m struck dumb that you’re attempting this sort of gamesmanship.

          1. DSS – I cannot believe you are surprised by David’s ignorant post. If you have been following my merry-go-round with him you would accept for the rant of the ignorant. Once he gets outside his field, he is clueless.

          2. The arguments of the left fail absent semantic games.
            This is not ever slightly surprising.

        3. Unless they are murdered – all humans eventually die – that is a medical thing.
          That does not change the fact that killing a human absent an acceptable justification – defense of self, defense of others, is usually murder.

          Nature kills humans all the time. That does not make murder proper.

          I am personally neither pro-choice or pro-life.

          But the discussion is not served by misrepresenting facts.

          The fundimental questions are simple – though not simple to answer:

          Is the fetus human – if it is, then it has rights.

          Is the purpose of abortion to no longer be pregnant or to and the life of the fetus ?

          A person has the absolute right to control of their own body – even if denying the use of their body results in the death of another human.

          If you agree to a life saving kidney donation and renige at the last minute resulting in someones death – I think you are morally repugnant, but you have not committed a crime.

    3. There is also no such thing as “corporate speech”.

      Great. We can put the Bezos Birdcage Liner and the Sulzberger Birdcage Liner out of business.

      1. There is no such thing as corporate speach.
        There is just free speach.

        For anyone.
        For any group.
        Including corporations.

    4. You’re right, Natacha, no medical book uses “partial birth abortion”. The term was created by a conservative focus group. And it’s meant to inflame!

      1. Wow! Left wing nuts complaining about inflammatory language.

        As descriptions of late abortions go – partial birth abortion is pretty tame.

    5. I remember hearing the term “Partial birth abortion” when it first came out on a left wing new station?

      1. Many left wing nut arguments quickly devolve into arguments about language rather than substance.

        If the left thinks the term is inflammatory, perhaps a picture might be better ?

        Partial birth abortion might be less euphemistic than whatever term the left would prefer,
        but it is less inflammatory – more euphemistic than reality

    1. OF COURSE IT’S JUST A COINCIDENCE

      One shouldn’t be alarmed when a weather map of the world is shaded dark red. Or ‘should they’..?? We have never seen this before but the current administration assures us that Climate Change is simply a hoax. Remember Al Gore, that sore loser from 2000..?? He’s still at it, making trouble for the Koch Bros. And just by pure fluke, these record temps come along.

      1. “We have never seen this before”

        2016 was much warmer than the present
        1998 was much warmer than 2018.
        In fact half the years since 1998 have been as warm or warmer than this year.

        1. Maybe so, dhlii…….but your comment does not shout those facts in CAPITAL LETTERS.
          Therefore, your observations re climate change are not as compelling as THE CAPITAL KID’S comment s.😉😃😄

          1. dhlii cites a 20 year warming trend as proof it’s not happening.

            1. I did not say “nothing” is happening.
              I said nothing unusual is happening.

              Little or nothing man made is happening.

              Certainly nothing the left wing nuts have predicted is happening.

              You lefties claim to beleive in science.

              Do you know what “falsification” means ?

              If you have a hypothesis that is out of sync with reality by 2.5+ std dev’s – in real science that would be called falsified.
              That means you reject the hypothesis and go back to the drawing board.

              The fact that you have not means you have no real interest in science,
              that you are just a cult substituting faith for science.

              The planet has been warming since the depths of little ice age – more than 250 years ago
              The rate of warming has slowed. In the past two decades it has nearly stopped.

              If the IPCC and warmists knew what they were talking about the planet would have warmed by 1C since 1998.
              Instead it might have warmed by 0.06C.

    2. This warmist claptrap is so boring.

      Since 1979 we have had about .07C og warming per decade.
      From about 1750 to the present te rate of warming has been 0.11C/decade.
      the rate of warming is SLOWING.

      At any given moment throughout the world 100 year old records for heat are being broken,
      and 100 year old records for cold.

      2018 Artic Sea Ice is greater than a long time.

      Turns out the only “warming” in Antartica is local and the result of a volcano, most of the continent is cooling.

      https://climatism.files.wordpress.com/2018/06/uah-global-temperature-update-for-may-2018-0-18-deg-c-c2ab-roy-spencer-phd.jpg?w=590

      1. She if you can show me all these ‘facts’ from a mainstream source. The New York Times, Washington Post, L.A. Times, Time Magazine, National Geographic. See if you can verify the ‘facts’ you put forth.

        1. I provided you with the UAH satellite temperature record since 1979.
          You can check RSS, or Hadcrut or GISSTEMP,
          while they have slight differences they still tell the same basic story.

          Are you saying that the primary sources of data on global temperatures are wrong – unless NYT agrees with them ?

          1. Try National Geographic. They’re the experts in subjects like Climate Change / Global Warming. See if National Geographic thinks Climate Change is ‘normal’. That were featuring monthly updates on the science 15 years ago. Check their back issues. See if their science corresponds with the Heartland Institute.

            And don’t think I haven’t seen bogus math and science presentations. That’s a gimmick deniers pull. These ‘obvious’ math formulas that ‘totally debunk’ carbon emission theories. Like massive industrialization in China, India and Brazil would have ‘no effect’ on the atmosphere.

            You don’t have to be scientist to know that when three of the world’s five most populous countries build factories by the thousands. While adding millions of vehicles to their roads. And building huge cities powered by coal. Something’s going to happen to the atmosphere.

            1. We only need to look at single events that lead to substantial damage and hardship to societies to recognize that vast amounts of anthropogenic pollution over the past hundred and twenty years certainly has a negative effect.

              https://en.wikipedia.org/wiki/Year_Without_a_Summer

              It only seems reasonable that where volcanic eruptions such as Krakatoa and Tambora can cause substantial climate disruption through a single event, we can expect calamity by our own destruction of ecosystems.

              1. Do you have the slightest clue how gargantuan the energy of a volcanic explosion is ?

                about 8×10^17 J

                An average huricane produces 5×10^19 J in 1 day.

                Total Human energy consumption in 1 year is 5×10^20 J
                That is the equivalent of 10 days of an average huricane.

                Each day 1.5×10^22J of energy strikes the earths surface from the sun.

            2. Pete;

              I have given you facts. You offer me National Geographic ?

              No they are not experts,
              Regardless, actual facts, trump journalists, magazines and experts.

              No Malthusian claim EVER has proven correct.
              Catastrophic Anthropogenic Global Warming will not be the first.

              Beyond that – do not put words into my mouth.

              I have no idea what the climate will be in 2100.
              Neither do you.
              Neither does Nat Geo.
              The statistical odds HEAVILY disfavor all the warmist predictions.

              The real world data and basic physics HEAVILY disfavor the warmist predictions.

              Arrenhius, Stephan-Boltzman, and Plank are all against you.

              They ALL say that linear increases in global temperatures require exponential increases in captured energy.

              This is why climate scientists have been running arround like chickens with their heads cut off looking for the missing heat.

              Do you understand ? The energy budget for the planet does not balance to support the models.
              Not only is there massive amounts of missing energy.
              But the required energy increases exponentially every year.

              That is pretty fundimental physics.

              I have no idea what you claim to have seen.
              I do know the fundimentals of science – a theory whose predictions are 2.5+ std dev’s from reality after 20 years – is false.
              If you say otherwise, you are selling religion not science.

              Do the actions of humans change the planet ?

              Certainly.

              But you are being decieved by the fallacy of big numbers.

              CO2 levels are just over 400 parts per million.
              They were 320 in 1880 and 300 in 1910.

              The change is not dramatic, and the best evidence we have suggests that warming due to CO2 is at the very most about 1.6C per doubling.
              That means that if the world reaches 600ppm by 2100 – which is highly unlikely,
              That global temps will be less than 1.6C above those in 1910.

              further because of the logarithmic nature of the curve – nearly all that warming has already taken place.

              And that 1.6C figure – that is the HIGH end. The low end is about 0.25C/doubling.

  3. Those who stare at some decision for a long time suffer from dementia. They put the latin term onto the process to give it credence. It is kind of like Credence Clear Water Revival.

  4. I agree that he provided clear contradictions to the concept of stare decisis in these final rulings. His reasoning in the South Dakota vs. Wayfair case was particularly ridiculous: He committed an act of Constitutional murder by deciding that Congress made an error due to technology that wasn’t widely used when they passed the original law affecting this case in 1992. He said that technology forces us (the Supreme Court) to broaden the definitions of commerce, and thus expand on what is permitted under the Commerce Clause of Article 1.

    This was just one example of a career as an activist judge who saw no bounds to what he thought the law should (bud didn’t) say.

  5. I’d argue that in areas of major policymaking (e.g., campaign and election law, personal freedoms and responsibilities, family law, business law, immigration law), there’s a major Constitutional flaw in play when Congress punts and SCOTUS carries the ball.
    It is a circumvention of the consent of the governed to allow activists to seek and sometimes obtain their policy objective through Court cases. This is highly relevant at this hour, as right-to-lifers are salivating at going around Congress and using the Court to overturn abortion law (earlier dictated by the Warren Court as Congress evaded responsibility).

    How can anyone claim to be a Constitutional conservative, and prefer that the Supreme Court be the body that decides abortion policy rather than Congress? I’m assuming that conservatives’ grievances will NOT be satisfied to have pregnant Louisiana teens hop on a plane to New Mexico to get an abortion.

    The drafters of the Constitution built in checks and balances against overreach of power, but not abdication of responsibility. This is a major flaw in the blueprint, and it will take a “Governing in Realtime” 28th Amendment to correct it.

    It might take the following form. If Congress has fallen behind the curve in anticipating legal controversies, and the conflict arrives at the doorstep of the Federal Courts, SCOTUS could only have “finality” on a precedent-setting decision if, within one full Congressional term, Congress has not acted to replace or refine the policy decision.
    The key feature of this check on Congressional irresponsibility is the time structure. It gives the voters one Congressional voting cycle to weigh in to change a SCOTUS policy choice, and the Congresspeople and President two years to work out something better, more lasting and carrying higher legitimacy of consensus.

    The Congress needs to have immense pressure put on it to tackle the gnarly controversies of our time (or future times). A Governing In Realtime Amendment changes the equation from one where, it’s too easy right now for Congress to defer to SCOTUS authority to make major policy, to one where a controversial SCOTUS decision setting major policy unleashes a 2-3 year process of public engagement in coming up with a better policy, culminating with Congress, representing the popular will, takes responsibility for writing the law.

    1. Did you see yesterday’s Quinniapiac poll? Sixty percent disapproval rate for Trumpy Bear. Obama did NOT have this low number at this stage of his presidency, so we must assume this came from Fox News.

      I know that Trumpy Bear’s latest theme is “Promises Kept”, but which promises, exactly, were “kept”? The border wall? How about stopping the brown vermin from crossing the border? What he has done is spend a record amount of time on the golf course, insulted and alienated most of our allies, started a trade war that will hurt our economy, massively increased the deficit, rolled back environmental protections, consumer protections, and we’re on course for a major recession.

      1. The issue of promises kept is as measured by those people who voted for him or possibly are inclined to.

        No one cares what those who loath Trump think about whether he kept his promises.

        Trump promised to deal with the border and immigration issues. And he promised to do so in ways that would radically reduce illegal immigration.

        No, he has not started a Wall. But he has clearly tried. He has fought with the left, and sometimes even the GOP to try to keep his immigration related promises.
        Few who might vote for him are going to hold his less than perfect success against him. Those who are never likely to vote for him – again who cares?

        I do not care how much Time Trump spends “working”. I care what he accomplishes.
        The labor theory of value is called Marxism. Value comes from what you produce, not how many hours you put in.

        Obama spent 8 years apologizing for the very existance of the US. I am sure that endeared us to world leaders.
        Trump has made it clear the appology tour is over.
        You do not have to like us. But we are the worlds only super power.
        And we are that BECAUSE we are a great nation of great people.
        The rest of the world is just going to have to deal with that – and guess what ? They are.
        The world is far from perfect, but there are less global problems that the US has to deal with than 2 years ago.
        We do not need to solve all the worlds problems, but we do need to not assure that our interests are met, while not getting sucked into the problems of the rest of the world.
        We are doing better at that than in 2 decades.

        I am deeply concerned about Trump’s actions regarding Trade.
        I am trusting Kudlow that the actual goal is free trade.
        But I could be wrong and Trump could F it up.

        At the moment the economy is good. Not great, but good, But then it has not been good for almost 2 decades.
        We will see what the future will
        The environment is doing fine. The left has been selling malthusian garbage well since Malthus.
        None of it has ever panned out. The sky is not falling.
        Consumers are doing fine – consumer confidence is at a point it has not been for 3 decades.

        Actually we are overdue for a recession. We were headed into one before the election.
        It did not happen because Trump was unexpectedly elected.

        Maybe we are headed into a recession.
        You can gloat then. But the short term predictions are good, not bad.

  6. You can support a decision with legal speak until the cows come home. The Supreme Court is there to interpret and protect the sacred texts. In reality the bias of the Supreme Court Justices interprets the sacred texts sometimes in one direction and sometimes in another. The legal argument of ‘State’s Rights’ would see slavery back here again, women and doctors jailed for abortions, oligarchs/corporation enabled in purchasing politicians, ‘the right to bear arms’ seen as either being ‘well regulated’ or open for the interpretation of the gun manufacturers, etc., here in America in some States. The law is a tool, like a hammer, can be used to pound in a nail as well as pull one out. The mastery of the law says much about the abilities of a lawyer and/or a judge but in the end it comes down to ideology. Scalia and the other conservatives protected the oligarchy that is now in place of the intended democracy, regardless of how well they mastered legal speak. Dismantling Roe versus Wade and leaving the issue of abortion to the States is not that much different from leaving the issue of slavery to the States. The fact of the matter is that guns travel across state lines. Women who cannot afford to travel across state lines die from botched illegal abortions. There is a ‘splitting the baby’ thing going on here.

  7. SENATE COMMITTEE REPORT:

    RUSSIA MEDDLED IN 2016 ELECTION

    INTELLIGENCE AGENCIES WERE CORRECT

    The Senate Intelligence Committee’s report affirms conclusions that its members first announced in May. It stands in sharp contrast with a parallel investigation by the House Intelligence Committee, whose Republican members questioned the intelligence community’s tradecraft in concluding the Kremlin aimed to help Trump.

    The Senate panel called the overall assessment a “sound intelligence product,” saying evidence presented by the FBI, CIA and National Security Agency supported their collective conclusion that the Russian government had “developed a clear preference for Trump” over his opponent in the race, Hillary Clinton. Where the agencies disagreed, the Senate panel found those differences were “reasonable.”

    The intelligence community determined that the Kremlin intended to “denigrate” and “harm” Clinton, and “undermine public faith in the U.S. democratic process” while helping Trump. The committee’s report backs that conclusion. It also supports the agencies’ findings about Russia’s tactics, which included cyberattacks and intelligence collection “against the U.S. primary campaigns, think tanks, and lobbying groups they viewed as likely to shape future U.S. policies.”

    The Senate panel’s assessment is not all glowing: The committee found the agencies’ assessment of Russia’s propaganda operation was outdated, relying on data from 2012 — something the Senate panel called a “shortcoming.” Senators also criticized the intelligence community’s report for not providing more comprehensive historical context, to put Russia’s 2016 operation into better perspective.

    Edited from: “Senate Report Affirms Intelligence Community’s Conclusion That Russia Favored Trump Over Clinton”

    1. This above story was published late yesterday afternoon. There wasn’t much coverage in the MSM which seems a little odd.

      1. I expect the left will froth over it.

        The rest of us do not need a Senate Report to grasp reality.

        What is increasingly self evident it the CIA/NSA/STATE/FBI/DOJ efforts to “interfere” in the US election.

        Russia is free to, and can not be prevented from engaging in persuasion regarding elections.

        Our government is NOT.

        What is increasingly likely is that the IC used “russia” as a pretext – not to monitor Russia – but to spy on Trump.
        Worse still, it appears that many of the “russians” involved in the Trump campaign – were not russians.
        and of those who were – most were agents of Clinton, CIA or FBI.

      2. That’s why it was released the afternoon before a major holiday.

    2. And a few days ago Rep. Gowdy was defining the FBI which he is now excoriating.

      Does it surprise you that the swamp is defending itself ? That it is covering for itself ?

      Did Russia do anything in 2016 that it did not do in prior elections ?
      Did Russia do anything in 2016 that the US does not do all the time throughout the world including Russia ?

      Recently Mueller delivered 2T of social media adds purportedly posted by “Russia” in the Concord case

      All of it is in russian.
      Is the left honestly arguing that the election hinged on Russian persuasion of the tiny portion of americans that can read Russian ?

      Is the left actually arguing that the Internet is the exclusive property of the US ?
      That none but US Citizens can use it – particularly to express views of US politics ?

      Are we going to arrest John Oliver for Opining on US elections ?

      Are we going to shut down the Guardian ?

      Are we going to sanction the UK because brits have veiws on US Elections ?

      There are two claims regarding the 2016 Election and Russia that are of consequence.
      That the Russians attempted to hack US voter registrations.
      That the Russians attempted to hack US voting machines.

      Those are the only things that the left has no interest in.

      Thus far the ACTUAL evidence is that Russian involvement in the 2016 election, was tiny, was focussed on disruption, not favoring one candidate over another.

      It is also increasingly evident as we get deeper into this that the “swamp” was deeply biased against Trump.
      The big exposures of the IG thus far are DOJ/FBI but State as well as NSA/CIA are clearly implicated.

      John Brennan is out in public now making clear his hatred for all things Trump.

      You honestly want to argue this extreme bias is new found ?
      That it had no impact on his official actions ?

      And how in the world can anyone sane conclude that Russia was particularly biased AGAINST Clinton ?

      During the election Bill Clinton received 1/2 million from ….. Russians
      Leading up to the election the Clinton Foundation received hundreds of millions from Russians.
      Trump’s earliest actions involved Keystone XL and DAPL – both of which Clinton opposed
      Trump’s actions significantly harm Russia.
      Trump subsequently worked to destroy ISIS, changed US rules of engagement to allow attacking Russia aircraft,
      Trump’s aggressive actions against Russian proxy Assad resulted I Russia dispatching one of its few modern missle frigates to intimidate the US.

      In this world the left thinks that Trump is in Putin’s pocket and the Clinton’s are not a Russian surogates ?

      The Senate – like you, is clueless. But that should not be surprising.

      1. dhlii, Maybe you should take a long walk until you reach the edge of the planet, and when you get to the very last step, step off and start yelling the Clinton’s made the world flat.

        1. If you or anyone else is going to make the ludicrously stupid argument that Trump is in bed with Putin and the Clinton’s were not,
          they you can expect to get bitch slapped by the facts.

          I would be happy to permaently ignore the Clinton’s but left wing nuts continue to make stupid arguments either that Clinton would have been a good president – NOT!
          Or that some facet of Trump is worse than anyone ever – without regard to myriads of presidents and politicians that were far worse than Trump – including the Clintons.

          Republicans did not make the Clinton’s the poster child for corruption – they did that to themselves

    3. The Senate Report makes assumptions based on Russian sponsored actions. In particular, it assumes motive. It assumes that the Russians favored Trump over Clinton. Seems reasonable. Why would they try to denigrate Clinton but to help Trump? And why do so unless they favored Trump? Motive is extremely important and to make assumptions about it is what has led to the current investigations.

      10 years ago, Rush Limbaugh touted his “Operation Chaos”. He was suggesting that Republicans vote in Democrat primaries for Hillary. At the time, Obama was running the table. His hope was to cause chaos at the Democrat National Convention. Did Rush favor Hillary? Not likely. He preferred the Republican nominee, who ever that was to be. But the nastier the DNC convention, the more damages would be the DNC and their candidate.

      The presidential election of 2016, had the same hallmarks as the Clinton/Obama primary of 2008. It was obvious that Obama would win the nomination over Hillary in 2008 and it was just as obvious that Clinton would win the presidency over Trump in 2016. Based on the fact that the same Russian sponsored activists were promoting “Not my President” marches and demonstrations immediately after the election, I believe it more likely that the Russians wanted to create chaos. They saw how divided the country became after the Gore/Bush controversy. They wanted the same after this election. If Hillary had won in a landslide, the country would have been more resigned to the outcome.

      Just because the US has interfered in foreign elections (think Israel) for the purpose of trying to influence the ultimate winner, it is dangerous to assume that the Russian motive was the same. The Senate nor the agencies have proof as to motive, only assumptions. I would suggest that chaos is perhaps a more likely assumption.

      1. I am open to arguments that Russia Favors Trump (or Clinton),
        But the evidence does not support that.

        Though I would note that the answer does not matter.

        There are several HUGE problems with the Russia boogey man arguments.

        The largest being – you neither can nor should prevent Russia or anyone else from engaging in persuasion.

        That is a fools task, and one that will backfire.

      2. Like most of the left – you fixate stupidly on motive – as if you can know what is in the minds of others, and as if it matters.

        If my “motive” is to become the richest person on the planet,
        and the results of jy efforts to do so vastly improve the lifes of all – what d my motives matter ?

        It is what you do, not why you do it that defines right and wrong.

        1. dhlii, I received notification that your 4:25 pm comment was in reply to my post. Perhaps you need to re-read my post which was in reply to the article posted by Peter Hil. You think it foolish to focus on motive. But you do so at your own intellectual risk. If the Russian motive was to help Trump, it raises the question “why?”. What did Russia have to gain? Was Trump involved in obtaining their assistance? Think Mueller.
          If their motive was to cause chaos, there is no more reason to investigate Trump than anyone else.
          I do agree that attributing motives to someone else is more of an art than a science, so prepare to be wrong. Do Russia’s motives change or excuse their actions? Certainly not. But this country has been ripped apart for the last two years based on the motives attributed to them. That is, to help Trump, their favored candidate. I think it is more likely that they wanted to sew the seeds of discontent by creating chaos. Perhaps policy makers need to devise protections or countermeasures, somehow, based on each scenario unless they can prove motive, rather than speculate.

          Also you say “It is what you do, not why you do it that defines right and wrong.” That is pretty stupid. If I shoot and kill someone: I can go to prison; or, be awarded a medal, depending on my motive. If he is trying to set off a bomb which would kill many people, I am a hero if I kill him in that process. If I kill him to rob him, not so good. What I did was the same. I shot him.

          1. Circular reasoning.

            If there is no act that is criminal – there is no reason to continue the investigation.

            Just to be clear – OUTSIDE a criminal investigation, and most government action you can weigh motive however you please.

            But to justify the use of force by government, you need an ACT that is criminal – not a “motive”.

            There are several alleged russian actions:

            Attempted hacking voter registrations – we should be doing something about that
            Attempted hacking of voting machines – we should be doing something of that.

            Hacking the DNC – there is a basis for an investigation, but given the evidence thus far the conclusion that Russia hacked the DNC is weak.

            assorted social media posts – Not the business of the US government in any way.

          2. “It is what you do, not why you do it that defines right and wrong.” That is pretty stupid.
            Nope.

            “If I shoot and kill someone: I can go to prison; or, be awarded a medal, depending on my motive.”
            It is not your motive that determines whether your actions are murder, self defense, or defense of others.
            It is AGAIN – the facts, in this case the act of the other.

            Just to be clear there are legitimate reasons to contemplate motives.
            They are often a clue to who committed a crime.
            They are informative in other ways.

            But an act that is not a crime, does not become a crime because of bad motives.
            SOMETIMES the OPPOSITE is true – you SOMETIMES can not be convicted of an act that is a crime – if you did not have the requisite intent.
            Intent is sometimes exculpatory, It is not inculpatory.

  8. If Stare Decisis is the standard, then how does a nation legally and culturally evolve?

  9. Not a big Kennedy fan.

    JT’s argument is weak.

    Stare Decisis can not be absolute – otherwise slavery would still be legitimate.

    Many many supreme court decisions have been bad and wrongly decided.

    MOST of the cases you JT’s cites are first amendment cases – and the first ammendent IS in the constitution and IS subject to strict scrutiny.

    Yes, I worry that many major decisions have had 5-4 majorities – all too often I ask what is wrong with the other 4 ?

    JT’s fixation on the absence of an explicit constitutional right to something – like “dignity” is merely a reflection of Kennedy’s poor logic – even when he reaches the right outcome.

    There is no constitutional right to dignity – and there does not need to be one.
    All that is necescary is to read the constitution properly – as constructing a govenrment of enumerated powers.
    What powers are not delegated to government do not belong to government. It is that simple.

  10. What if the new format is a quarantine for the contagiously querulous? What if the old format is still out there somewhere else on the inter-tubes besides here in sequestration? What if there’s some other “router” that takes others “there” if they’ve not yet been “infected”? Might Turley still be wracking up tens of millions of “views” with other commenters?

  11. The ‘legacy’ worth having has one object: throwing overboard every innovation in jurisprudence devised since 1914 except in those cases where stare decisis might apply per Robert Bork. Social Security, Medicare and Medicaid, Glass-Steagall and the like, and the Federal Reserve stays; some other innovations are re-oriented (making use of the privileges-and-immunities clause and the guarantee clause); and the rest is tossed overboard. Substantive due process disappears, the ‘equal protection’ clause is used only to second-guess the actions of executives (not legislatures), the distinction between inter- and intra- state commerce is restored (along with the distinction between commerce and the larger domain of economic activity), the non-delegation doctrine re-appears, &c.

    1. Lochner Era here we come.

      Right back Where we started from.

      Close and bar your Golden Gate.

      Lochner Era here we come.

      1. L4D – major “civil rights” victories occurred during the “lochner era”.

        At the time of ratification there was an argument against the bill of rights.
        It was claimed that by adding a bill of rights, it would be assumed that those rights were our only rights.
        That the purpose of the constitution was NOT to define the rights of the people,
        But to enumerate the powers of government.
        Whatever was not permitted to government was prohibited.
        Whatever was not prohibited to the individual was permitted.

  12. Happy Independence Day fellow Americans and American wannabes–someday.

    1. If the kids actually are hungry it’s because their mothers are drug addicts. Deal with the problem, please.

        1. David Benson owes me five citations (one from the OED) and the source of a quotation, after six weeks and is considered to be Making Stuff Up until he starts citing his sources.

        2. As we speak, expenditure on groceries accounts for 6% of personal income in aggregate. For the least affluent 30%, grocery expenditures are subsidized through SNAP. There are also community food cupboards all over the place. You live in a country where obesity is inversely correlated with income. If you have ‘hungry children’, it’s because they’re neglected. There’s a reason for that neglect, and it isn’t ‘poverty’.

  13. There are a lot of decisions that should be ‘rethought.” The court has often rethought decisions, carving around the edges.

      1. TONY – I am the oldest of 6, they did not do a lot of rethinking. They actually wanted 12 however my father died at unexpectedly at an early age.

  14. I’m certain a lot of conservatives and libertarians would like the court to rethink Wickard V. Filburn. I’d be okay with that. I’d also like the court to rethink Santa Clara vs Southern Pacific.

    1. Absolutely Wickard v Filburn; that is the case that broke the constitutional boundaries of the federal government over intra-state activities.
      US v Carolene Products 304 U.S. 144 (1938), was Wickard’s prelude with its infamous Footnote Four:
      https://en.wikipedia.org/wiki/United_States_v._Carolene_Products_Co.?oldformat=true#Footnote_Four.

      Also I would like United States v. Leon, 468 U.S. 897 (1984) to be overturned, and put 4th amendment jurisprudence on its head.
      After Leon, it no longer mattered if a search warrant was defective, all that mattered was that the serving police thought it was good.
      The good faith doctrine in criminal search warrant standards began in earnest.

      1. Gary T, I agree. If strict scrutiny review is good enough for the Second Amendment, then rational basis review is NOT good enough for the Fourth Amendment.

        1. ALL rights should be subject to strict scrutiny.

          Both enumerated and unenumerated.

          Anything else and it is not a right.

          Though the same can be accomplished simply by constraining government to its enumerated powers.

      2. It concerned a search warrant which had some typos in it. The ACLU liars bitched and moaned about it.

        1. When ordinary people make mistakes – they are accountable.
          When those mistakes result in serious harm to others, it may cost us our life, our liberty our property.

          It is reasonable to expect that when the police break someones door in – they have the right door.

          Further the “good faith” standard for police, ultimately ends up not merely excusing mistakes, but encouraging them.

          When you say mistakes are OK – the police will just deliberately make mistakes.

          1. Oily Crepe! Tiara Boy just wrote something with which I agree. What’s going on? What’s going on?

            1. I keep telling you – I am libertarian – not conservative, not republican.

              Maybe you should approach what I – and others write with a more open mind and less prejudgement.

              Classical liberalism means less government – less police, and more individual rights.
              More individual responsibility for your own life.

              Regardless, if you give people power and you do not hold them accountable you can expect they will abuse that power.

              The mistake the left makes is after decades of fighting to give government unaccountable power, trying to hold only those they do not like accountable as individuals.

              Whether it is Trump or the last officer to shoot or taze someone, what is necescary is to add accountability to government – broadly.
              Not at this moment, at this time for this person.

    1. Turley? As Captain Queeg? Come to think of it, you’re probably right about that, Dr. Benson. Kennedy’s legacy is the least of our worries at this point. The Trump court is likely to revert all the way back to The Lochner Era of SCOTUS jurisprudence. Keep an eye out for SCOTUS decisions overturning The Sherman Anti-Trust Act. That’ll be a “tell,” for sure. Did you know that throughout The Lochner Era the armed forces of the United States of America were NOT the best trained and NOT the best equipped? One wonders exactly who would benefit the most from an atavistic throwback to The Lochner Era. Where’s Waldo? [Read–Vlad]

      1. Actually, Benson didn’t say who he was referring to as Captain Queeg.
        I don’t think he likes to extend himself, given all the extra writing and effort it would take to do so.
        In any case, I don’t see JT as Capt. Queeg, as L4D/Inga/Keefer/Annie suggests.

        1. Ptom Gnash enables Dr. Benson, too. Schulteacher gave me license to take liberties with Dr. Benson’s comments by way of enabling. Welcome to the party, Ptom.

      2. Keep an eye out for SCOTUS decisions overturning The Sherman Anti-Trust Act.

        Can a businessman read the act, even with the aid of a legal dictionary, and have much idea of what is a lawful or unlawful contract? If offenses are defined in case law (by judges or regulatory commissions), is that not properly regarded as a in impremissible delegation of legislative power?

        1. Excerpted from Wikipedia on the Sherman Anti-Trust Act [actual text]:

          Section 1: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.”

          Section 2: “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony . . .”

        2. What’s it mean? If businesses use trusts buy business competitors so as to stymie competition in a market, then the federal government has the authority to bust that trust up into competing businesses so as to assure competition in that market.

          1. That’s cute, Diane. Now translate that into a set of instructions so that a businessman has a passable idea of what is and is not permitted.

            1. They used to say that ignorance of the law is no defense. But even if it were, I seriously doubt that the businessmen have no passable idea as to what they’re doing when they form trusts to buy competitors to stymie competition in a market. After all, they, too, have the right to contract with lawyers to give them a passable idea of what is and is not permitted. Think of it as trench lawfare, if you will. There’s no free lunch for businessmen, either.

              1. Uh, no, Diane. If the Congress wanted to outlaw collusive pricing, that could have been done with explicit language.

                They used to say that ignorance of the law is no defense.

                Yeah, well the legislators don’t know what the law is because they turned the task of defining it over to the judiciary and the regulatory commissions.

                The problem is, Diane, businesses are bought and sold all the time. The challenge to the authors of the legislation would be to define criteria which would selectively prohibit certain mergers and acquisitions while penalizing those who attempt them. They didn’t get it right.

                1. If the businessmen can force their employees into arbitration with federal regulators, then those same businessmen have no legitimate gripe against other federal regulators overruling their mergers with, and acquisitions of, competing businesses.

      3. We could only be so fortunate as to return to the lochner era.

        Yes, finding anti-trust law unconstitutional would be great.

        Where EVER has there been a sustained private monopoly ?

        Actually learn the facts of Standard Oil – the facts indict the lunacy of the left wing nuts that thought destorying SO was a good idea.

        It never had more than 70% of the market. It relentlessly drove prices down for the entirety of its existance.
        Prices rose dramatically after it was broken up.

        Further there is much economic data out there that absent government creating barriers to entry even a real monopoly should it ever exist, would be forced to constrain its behavior so long as the government did not make it difficult for competitiors to form.

    2. Excerpted from Jared Kushner’s statement to Congress:

      The Ambassador [Sergei Kislyak] expressed similar sentiments about relations, and then said he especially wanted to address U.S. policy in Syria, and that he wanted to convey information from what he called his “generals.” He said he wanted to provide information that would help inform the new administration. He said the generals could not easily come to the U.S. to convey this information and he asked if there was a secure line in the transition office to conduct a conversation. General Flynn or I explained that there were no such lines. I believed developing a thoughtful approach on Syria was a very high priority given the ongoing humanitarian crisis, and I asked if they had an existing communications channel at his embassy we could use where they would be comfortable transmitting the information they wanted to relay to General Flynn.

    3. Excerpted from the David Ignatius article linked around here somewhere:

      Syrian opposition leaders are bitterly disappointed at the deal that’s taking shape, and one warned me that the American “betrayal” will be an incubator for future jihadist movements. European countries, which have been key covert allies in Syria, are deeply skeptical that the anti-Iran plan will work. “Britain and France have warned the U.S. that it’s highly improbable that Russia has the presence on the ground to get the Iranians to shift out” of areas they now dominate, a European diplomat told me.

      Trump’s willingness to accede to Russian power in Syria — and to give up hard-won American gains — troubles many Pentagon officials, but they seem to be losing the argument.

      As Putin makes his way toward the summit stage, it’s worth pausing a moment to appreciate how deftly he has played his hand. Russia is becoming the indispensable regional balancer, playing a role once proudly claimed by America. Russia somehow maintains good relations with both Iran and Israel; it has growing ties with Saudi Arabia and the United Arab Emirates; it talks with Syrian Kurds and their bitter rivals in Turkey.

      1. It is hilarious that the marxist left is so antagonistic to Russia at the moment.
        Does anyone doubt that if they beleived Putin had favored Clinton they would be fawning all over Russia.

        Regardless. no less significant a person that George Washington warn us of involving ourselves in foreign intrigues.
        We should have neither friends nor enemies, treating all alike and staying out of foreign entanglements and wars.

        1. Russia backs Al-Assad. Iran backs Al-Assad. Trump is about to make The US back Al-Assad. And Russia is supposed to protect Israel from Iran? What could possibly go wrong? Well , according to Kushner’s excuse for the back-channel set-up plan, ” . . . Syria was a very high priority given the ongoing humanitarian crisis . . .” And according to Ignatius, “Syrian opposition leaders are bitterly disappointed at the deal that’s taking shape, and one warned me that the American ‘betrayal’ will be an incubator for future jihadist movements.” And then there’s the other tidbit from Kushner’s excuse for the back-channel during the transition, “The Ambassador [Sergei Kislyak] . . . said he especially wanted to address U.S. policy in Syria, and that he wanted to convey information from what he called his ‘generals.'”

          Did you know that Flynn was directed to receive information from Kislyak’s “generals” beginning just 48 hours after the polls closed on November 8th, 2016? Talk about hitting the ground running. They didn’t waste any time. Did they? It’s almost as though both sides of the back-channel knew ahead of time about Kislyak’s desire to convey information from his generals to address US policy in Syria. Isn’t it?

          1. Apparently you did not read George Washington’s farewell address.

            I do not care who Iran backs, or who Russia backs.

            We should not be “backing” anyone.
            We should only use our power to protect our own interests – narrowly construed.

            If the rest of the world wishes to be F’ed up. That is its choice.

            While that is NOT Trump’s foreign policy.
            His approach is closer to that than any president since reagan.

            There are pretty much no good guys in the mid-east.
            Anytime we take sides – we inevitably side with someone despicable.

          2. So you are frothing at the mouth because post election Trump and Co may have developed a back channel to Russia ?

            So what ? That is quite normal. Back Channels are quite common in foreign policy.

            So lets go bigger. Though it has not been established – and in fact the evidence is that such a channel did not exist (well except the Clinton’s obviously had one with Ukraine, and almost certainly with Russia)

            If in fact you established today that the Trump campaign had a secret back channel to Putin during the election – that would still not be a crime – except the possibility that some Trump surrogates might have lied about it under oath.

            To get actual wrong doing you have to have Trump working with Russia to do something illegal – like hacking the DNC.

            Mere contact is not sufficient.

            Even “colluding” on a Russia social media campaign would not be sufficient.
            Though the fact that the left beleives that Trump went to great trouble and great risk to foster a Russian social media campaign that was tiny and ineffectual is ludicrously stupid.

            Why did Trump need Russian help with “social media” ? Trump, his own people, his own campaign, and the GOP PAC’s were many many times more effective than the Russians.

            But left wing nuts beleive in unicorns.

          3. Is there some reason you beleive that there is something wrong with the president of the United States getting information from any sources that he can ?

            What is wrong with learning from Russia, what Russia says they want ?

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