tag:blogger.com,1999:blog-29822098.post7921720018763374591..comments2023-09-27T03:55:18.369-04:00Comments on The Occasional Observer: Chief Justice SouterFredohttp://www.blogger.com/profile/13937201111960580542noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-29822098.post-70827011836769565062012-06-29T15:45:33.806-04:002012-06-29T15:45:33.806-04:00As I was thinking about your Kennedy="consist...As I was thinking about your Kennedy="consistently libertarian" position last night, and putting aside Casey, it was gnawing at me that he sided with the state in Kelo. But I wasn't sure if I remembered it right.<br /><br />Well, reading your two links today, I did. The bit on "Reason" was clearly the stronger defense of Kennedy (as for the "Liberty Magazine" piece, it was more a reminder to me of why Kennedy is not a reliable defender of the Constitution). Even still, Mr. Root lays out the reasons to be skeptical of Kennedy:<br /><br /><i>Kennedy also sided with the majority in two of the most notoriously non-libertarian decisions in recent years: Gonzales v. Raich, which upheld the federal government’s ban on marijuana as a valid exercise of congressional power under the Commerce Clause, and Kelo v. City of New London, which allowed New London, Connecticut's abusive use of eminent domain to stand. So while the term libertarian may apply to a nice chunk of Kennedy’s jurisprudence, it unfortunately does not apply to all of it.</i><br /><br />Mind you, I agree with you that labels like "conservative" and "liberal" are often not helpful when evaluating a justice, and I think the same goes for "libertarian." They are shorthand. I'm not really that interested in whether a justice is conservative (whatever that means-- Burkean? Taftian? Reaganite?), but rather, in whether he faithfully applies the constitution. This is why an originalist approach to juriprudence makes the most sense to me, and is my measuring stick. When I say "conservative" in the context of the Supreme Court, I'm usually meaning "originalist."<br /><br />And when viewed from the vantage point of "originalism," I think Kennedy has been largely a good justice, but at certain times a tremendously bad justice.<br /><br />The unfortunate part for Kennedy, is that when he has gotten wrong, it's been in some high profile cases. Just as the ACA case will forever sully Roberts' reputation, Kennedy cannot recover from the travesty that is Casey, despite having made many sound rulings over decades. The stakes in Casey were just too high, the opportunity too great, and it was fumbled at the goal line. That will be his epitaph. <br /><br />The fact that he is so roundly ridiculed for his language in the opening of the opinion is warranted. He wasn't tasked with re-writing the Declaration of Independence, simply ruling on whether the state of Pennsylvania had violated the Constitution. And as with the Warren Court, which created "eminations and penumbras of the Constitution" as rhetorical device giving them carte blanche to invent rights wholesale, Kennedy's "mystery of human life" rhetoric was a smokescreen to avoid the issue at hand. The fact that his frothy language could be used to claim it's unconstitutional to regulate narcotics, atomic weapons, and man-boy sex is just another reason why he would have been better served to avoid sweeping, metaphysical arguments, and stick to the case before him. <br /><br />All that said, I'll agree with the statement that <i>there’s “a strong libertarian streak in Kennedy’s jurisprudence”</i>, even if <i>he isn’t...“a down-the-line, Nozick-reading, Cato Institute libertarian.”</i><br /><br />That's mild but not unwarranted praise, so long as you're aware of the counter-examples that Root puts in his own piece.<br /><br />In my mind, Kennedy and Roberts are now the least satisfactory justices in the subset of those I'm still glad are on the Court. Still way better than the O'Connors and Souters of the world, though I wouldn't be surprised to see the CJ continue down the path to Hell. <br /><br />After 24 years, at least we don't have to worry about that with Kennedy. We know what he is.Fredohttps://www.blogger.com/profile/13937201111960580542noreply@blogger.comtag:blogger.com,1999:blog-29822098.post-29289981986108337072012-06-28T20:15:05.672-04:002012-06-28T20:15:05.672-04:00Fair enough. I don't have any nits to pick wi...Fair enough. I don't have any nits to pick with Justice Kennedy tonight. <br /><br />All my anger is directed elsewhere. And I'm somewhere between anger and utter resignation at our nation's future.Fredohttps://www.blogger.com/profile/13937201111960580542noreply@blogger.comtag:blogger.com,1999:blog-29822098.post-73134965851993478442012-06-28T17:52:52.132-04:002012-06-28T17:52:52.132-04:00You know that I consider abortion murder and that ...You know that I consider abortion murder and that I agree with your statement "The deprivation of life is the ultimate deprivation of liberty", but my point is that calling Kennedy conservative is incorrect. As I said, nitpicking.ManBeasthttps://www.blogger.com/profile/11401272382424890409noreply@blogger.comtag:blogger.com,1999:blog-29822098.post-39654007988239574482012-06-28T16:44:33.954-04:002012-06-28T16:44:33.954-04:00No true libertarian could have abandoned the origi...No true libertarian could have abandoned the originalist wing of the Court at the moment of (what would have been) their greatest triumph-- PP v Casey, and the overturning of Roe.<br /><br />The deprivation of life is the ultimate deprivation of liberty.<br /><br />I will review your links later when I have the chance, but Kennedy is well known for being unpredictable, and has himself stated he doesn't have an overarching approach to jurisprudence (such as originalism or Living Constitution). <br /><br />He's far from the worst out there, but if you want to see a true friend of liberty, it is Justice Thomas, who repeatedly dissents or concurs, even with his "conservative" colleagues, to point out how the government consistently oversteps its constitutional authority. Read his 2 paragraph dissent (which is offered as an addition to the Kennedy dissent) as another addition to his canon of strict adherence to the Constitution. <br /><br />When other justices fall back on stare decisis as a reason to uphold a federal power that is not specifically enumerated in the constitution, Thomas will dissent.Fredohttps://www.blogger.com/profile/13937201111960580542noreply@blogger.comtag:blogger.com,1999:blog-29822098.post-81169075914572039052012-06-28T16:31:08.749-04:002012-06-28T16:31:08.749-04:00While I agree with your major points - Roberts=Cow...While I agree with your major points - Roberts=Coward, the decision is an affront to liberty - I have a nit to pick. Kennedy is consistently libertarian, not conservative or liberal. It just happens to overlap with the conservative half of the court more. <br /><br />Here are others backing that claim:<br />http://www.libertymagazine.org/index.php?id=1585<br /><br />http://reason.com/blog/2012/06/18/justice-anthony-kennedy-libertarianManBeasthttps://www.blogger.com/profile/11401272382424890409noreply@blogger.com